Discrimination redefined.

• Author: McGinley, Ann C.
• Position: Response to article by Natasha T. Martin in this issue, p. 313

1. INTRODUCTION

   In Pretext in Peril, (1) Professor Natasha Martin argues convincingly that the United States Supreme Court and the lower federal courts have interpreted Title VII of the 1964 Civil Rights Act (2) to minimize a plaintiff's success in proving discrimination. She posits that the courts appear hostile to anti-discrimination cases because they believe that discrimination is a past evil that has been virtually eliminated. (3) This mindset, combined with overcrowded dockets and a tendency to empathize with the employer's prerogatives, has led to judicial activism that has undermined Title VII's potential. (4)

   Focusing on disparate treatment, which requires proof of discriminatory intent, Professor Martin notes accurately that employers' new sophistication about employment discrimination has virtually eliminated direct evidence of discrimination. (5) But, unfortunately, as Professor Martin explains, discrimination continues to exist at perhaps a more subtle level, a fact that has led many courts to believe that "real" discrimination exists no more. (6)

   I agree with Professor Martin's premise that it has become increasingly difficult to prove disparate treatment, especially in light of courts' aggressive use of summary judgment. I argue in this essay that the courts' retrenchment in Title VII cases results from a narrow definition of discrimination that focuses on conscious, intentional discrimination. Increasingly social science research demonstrates that much disparate treatment occurs as a result of unconscious biases, (7) but the courts' reluctance to consider this social science has led, in many cases, to a literal, narrow definition of "pretext." Moreover, I posit that the recent Supreme Court case of Ricci v. DeStefano (8) redefines discrimination in an ahistorical and acontextual fashion by elevating colorblindness above all other values; (9) it both limits and expands disparate treatment to conscious use of race in decisionmaking while simultaneously restricting the usefulness of disparate impact (10) to attack policies and practices having a disparate effect on historically disadvantaged groups. This redefinition of discrimination tilts the law toward protecting the interests of white employees over those of their black and other minority colleagues because discrimination against minority employees has gone underground--both consciously and unconsciously--and, therefore, cannot be remedied. Additionally, any overt attempt to remedy discrimination against racial minorities is treated as discrimination against their white counterparts. While space does not permit me to flesh out a solution to this problem, I suggest that scholars work on a new proof construct that would accommodate what we currently know about discrimination: that much of it operates at the unconscious level.

2. PROFESSOR MARTIN'S CRITIQUE

   The focus of Professor Martin's critique is the last stage of the indirect proof method first established in McDonnell Douglas Corp. v. Green (11) Recognizing that it may be difficult to prove intentional discrimination in cases where the employer does not admit bias, the Supreme Court established the McDonnell Douglas proof mechanism, which allows the plaintiff to use a three-step method to prove discrimination indirectly. (12) The first stage establishes the prima facie case; the second stage shifts the burden to the defendant to produce evidence that it had a legitimate, non-discriminatory reason for the adverse employment action. (13) Finally, in the third stage, the plaintiff has the burden of demonstrating that the employer's legitimate, non-discriminatory reason is a pretext for discrimination. (14) This burden of proving pretext merges with the plaintiff's ultimate burden of persuasion and, if proved, ordinarily is proof of discriminatory intent. (15) The pretext stage, as Professor Martin points out, is the most important stage of the McDonnell Douglas proof method. (16) It is also the most controversial and the stage that does all the work. In essence, most cases using the indirect proof method boil down to the question of whether the plaintiff has successfully proved pretext.

   Professor Martin appropriately focuses on pretext because of its importance in proving discrimination. She notes that proving pretext, as a legitimate means of proving discrimination, is in peril for a number of reasons. First, she explains the convoluted history of the lower courts' view of pretext. (17) Despite language in Texas Department of Community Affairs v. Burdine, (18) which many interpreted to create a mandatory presumption of discrimination once pretext is established, some lower courts began to require plaintiffs to prove not only pretext but also additional evidence of discrimination in order to prevail. (19) The Supreme Court analyzed this approach in St. Mary's Honor Center v. Hicks, where it held that a finding of pretext did not create a mandatory presumption of discrimination. (20) The Court ruled that a fact-finder is free to determine that proof of pretext is sufficient for a finding of discrimination, but the fact-finder is also permitted to conclude that pretext alone does not demonstrate that discrimination occurred. (21) Soon thereafter, in Reeves v. Sanderson Plumbing Products, Inc., an Age Discrimination in Employment Act (ADEA) case, (22) the Supreme Court held that proof of a prima facie case combined with proof of pretext is ordinarily sufficient to support a jury finding for the plaintiff. (23)

   Professor Martin makes a three-pronged argument. First, she argues that the Supreme Court in Reeves did not clarify the requirements sufficient to support a finding of discrimination. (24) Second, she posits that the lower courts have adopted a number of rigid "rules" or presumptions that undermine a plaintiff's proof, including the "stray remarks doctrine," the "honest belief" rule, a requirement that plaintiffs provide narrow and specific comparator evidence and the "same-actor doctrine." (25) Third, Professor Martin observes, the lower courts have taken advantage of the ambiguities left by the Supreme Court cases. (26) The lower courts have applied these rigid and faulty rules while simultaneously aggressively using procedural mechanisms such as summary judgment and judgment as a matter of law.

   Professor Martin's arguments are well taken. While Reeves is a pro-plaintiff opinion, the Court leaves a gap because it does not hold conclusively that a finding of pretext will always support a jury verdict for the plaintiff. In her concurrence, Justice Ginsburg attempts to fill this gap, stating that only in uncommon circumstances should a plaintiff be required to submit evidence in addition to proof of a prima facie case and of pretext. (27) Nonetheless, lower courts have pushed the envelope after Reeves, granting summary judgment or judgment as a matter of law where there seems to be sufficient evidence that the employer's alleged legitimate, non-discriminatory reason is a pretext for discrimination. (28) There is no question that the lower courts, prompted by a sophisticated defense bar, have embraced a number of rigid rules identified by Professor Martin--in combination with the aggressive use of summary judgment and judgment as a matter of law--to exonerate defendants from claims of discrimination even though there appear to be significant factual issues. This aggressive use of procedural devices has deprived many plaintiffs of the opportunity to have their cases heard before a jury of their peers.

3. TWO DEFINITIONS OF DISCRIMINATION

   I agree with Professor Martin's view that the lower courts have interpreted employment discrimination law in a rigid, impractical manner and that there is significant discrimination occurring in the workplace that Title VII has not prevented or cured. (29) However, others with a different world view would disagree, concluding that Title VII has been used as a means of undermining the employment-at-will doctrine and intruding upon the reasonable prerogatives of employers. (30)

   Both sides of the debate are right. There is no question that there are employees who attempt to use the employment discrimination statutes to sue their employers even though they are not victims of illegal discrimination. By the same token, there are many employees whose meritorious lawsuits for illegal discrimination fail as a result of rigid, blind rules that ignore the discrimination that caused the plaintiff's adverse employment action. Both sides of the debate may even agree with both of these propositions. But we differ starkly as to our perception of the principal problem.

   our differences are about the very definition of discrimination. "Discrimination" means different things to different people. The narrowest view of illegal discrimination is defined as intentionally treating someone differently (and worse) because of the individual's race, color, national origin, gender, sex, religion or age. It sees discrimination as a wrong perpetrated by one individual against another individual. It results from conscious discriminatory animus toward the person because she or he is a member of a protected group. It eschews the concept of structural discrimination. Employers are responsible only because their employees, acting as agents, made a consciously discriminatory decision and carried it out.

4. SCIENCE ON THE ORIGINS OF BIAS AND THE COURTS' REACTIONS

   For one who advocates ascertaining the intent of the enacting Congress, or even one who permits "imaginative reconstruction" as explained by Judge Posner, (31) it may be necessary to limit Title VII to this view. But one who views statutes as dynamic and living documents...