Don't Throw the Price Waterhonse Baby Out With the Bath Water: Age Discrimination and the Direct Evidence/mixed Motive Puzzle

• Jurisdiction: United States,Federal
• Citation: Vol. 15 No. 01
• Publication year: 1991

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 15, No. 1FALL 1991

COMMENTS

Don't Throw the Price Waterhonse Baby Out With the Bath Water: Age Discrimination and the Direct Evidence/Mixed Motive Puzzle

Mary L. Beyer(fn*)

I. Introduction

Employers that discriminate against employees on the basis of age violate federal and state statutes.(fn1) Because discrimination is often subtle, however, proving it at trial may be difficult. As a result, the Supreme Court has found that employers discriminate even when direct evidence of discrimination is absent.(fn2) Instead of requiring direct evidence, courts addressing these allegations require employers to establish legitimate, non-discriminatory purposes for their actions.(fn3) This test, developed by the Supreme Court in McDonnell Douglas Corp. v. Green,(fn4) is useful in cases lacking direct evidence of discrimination; however, it is ill-suited to cases in which direct evidence exists or in which employers have mixed motives(fn5) for their discriminatory acts.(fn6) The McDonnell Douglas test is inappropriate in the direct evidence setting because it provides employers with unnecessary advantages that are prejudicial to employees who have established direct evidence of discrimination. Furthermore, the McDonnell Douglas test is inadequate in a mixed motive setting because the test fails to delineate how and if employees can prevail when at least one of their employer's motives is legitimate. Finally, the test is inappropriate in both the direct evidence and mixed motive settings because it ignores Supreme Court precedent allocating the burden of proof in employment cases to reflect the employer's "superior access to the truth."(fn7)

Federal courts have recognized the inadequacy of the McDonnell Douglas test in the direct evidence and mixed motive settings. Although federal courts have long applied the McDonnell Douglas test to allocate the burden of proof in cases involving indirect evidence,(fn8) they have used different methods for allocating the burden of proof in cases involving direct evidence of discrimination(fn9) or in cases in which employers' actions were motivated by a mixture of legitimate and illegitimate considerations.(fn10)

Washington courts have long been in the habit of using federal case law to interpret the state anti-discriniination statute.(fn11) Nonetheless, Washington courts have clung to the McDonnell Douglas test even in cases involving direct evidence or mixed motives.(fn12) Thus, Washington courts have failed to incorporate the refinements made by federal courts regarding the allocation of the burden of proof in discrimination cases.

Washington courts must abandon this slavish adherence to McDonnell Douglas in cases involving direct evidence and mixed motives. A more appropriate evidentiary standard would place the burden on employers to establish that they would have taken the same action toward the employees if age had not been considered.(fn13) A higher burden on employers would help Washington courts realize the promise of "elimination and prevention" of discrimination offered by Washington age discrimination legislation.(fn14)

This Comment examines why Washington should place a higher burden on employers in direct evidence and mixed motive age discrimination cases. Because Washington courts follow federal case law in interpreting state anti-discrimination legislation, Section II examines relevant federal statutes and the history of their interpretation by federal courts. Section III explores the courts' modification of the traditional federal approach found in direct evidence and mixed motive cases. Section IV discusses Washington's anti-discrimination statute(fn15) and Washington's judicial interpretation of that statute. Section V demonstrates Washington's insufficient response to federal developments in direct evidence and mixed motive cases. Finally, Section VI identifies procedural safeguards that Washington courts can employ in these cases to avoid potential problems caused by requiring employers to show that they would have taken the same action absent cliscrimination. By placing a greater burden of proof on the employer in direct evidence and mixed motive cases, Washington courts can better effectuate the goals of Washington's anti-discrimination statute.

II. Federal Anti-Discrimination Law

Washington courts have drawn heavily on the expertise of federal courts to resolve discrimination questions.(fn16) This reliance is necessary because the state age discrimination statute does not specify what criteria an employee must meet to prevail in an age discrimination case.(fn17) Additionally, when seeking precedent for discrimination cases, Washington courts follow the federal pattern of minimizing distinctions among cases involving sex, race, and age discrimination.(fn18) Because Washington courts apply federal sex and race discrimination cases as precedent to resolve state age discrimination questions, this Section will examine the federal statutes regarding sex, race, and age discrimination as well as the federal cases that have traditionally interpreted these statutes. The relevant federal statutes are Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967; the seminal cases are McDonnell Douglas Corp. v. Green(fn19) and Texas Dep't of Community Affairs v. Burdine.(fn20)

A. Title VII of the Civil Rights Act of 1964

Title VII of the Civil Rights Act of 1964(fn21) (Title VII) forms the statutory basis for analyzing modern employment discrimination cases.(fn22) Title VII prohibits employers from discriminating based on race, color, religion, sex, or national origin.(fn23) Title VII does not specify, however, what standards should be used to measure statutory compliance or what burdens of proof should be required of each party to meet those standards.(fn24) Federal courts have filled these statutory gaps.(fn25) The cases interpreting Title VII provide the modern basis for interpreting not only Title VII but also other discrimination statutes.(fn26)

B. Age Discrimination in Employment Act of 1967

Although Congress did not address age discrimination in the landmark Title VII legislation, it rectified this omission three years later by passing the Age Discrimination in Employment Act of 1967 (the ADEA).(fn27) The ADEA prohibits employers from discriminating against employees on the basis of age(fn28) by protecting employees who are at least 40 years old.(fn29) The purposes of the ADEA are to encourage the employment of older workers on the basis of their ability(fn30) and to remedy the problems older workers encounter in obtaining and retaining employment.(fn31) The ADEA prohibits the refusal to hire an employee, the discharge of an employee, or the performance of any other discriminatory act based on age.(fn32)

Although separate from Title VII,(fn33) the ADEA is substantively and procedurally similar to Title VII.(fn34) Because the ADEA is a separate statute, however, some commentators and courts have argued for separate evidentiary standards for ADEA and Title VII cases.(fn35) Nevertheless, the majority of cases interchange these statutory references.(fn36) Analysis of the cases interpreting these statutes is critical to understanding the allocation of the burdens of proof in federal age discrimination cases. Two pivotal cases defining the traditional burdens of proof in age discrimination cases are McDonnell Douglas Corp. v. Green and Texas Dep't of Community Affairs v. Burdine.

C Traditional Federal Interpretation

In McDonnell Douglas, the plaintiff, Green, was a black mechanic and laboratory technician employed at a manufacturing facility in St. Louis, Missouri.(fn37) After he was laid off as part of a general work force reduction, Green participated in acts of civil disobedience at the plant.(fn38) When McDonnell Douglas later sought to hire technicians, it turned down Green's application because of his participation in the civil disobedience.(fn39) Green then filed a complaint with the Equal Employment Opportunity Commission,(fn40) claiming that his application was denied because of his race and involvement in the civil rights movement.(fn41) The Supreme Court eventually granted certiorari in the case to clarify the standards governing employment discrimination.(fn42)

The Court held that employees bear the initial burden of proving a prima facie case of discrimination.(fn43) To meet that burden, an employee must show the following: (1) the employee is part of a racial minority; (2) the employee applied and was qualified for a job that the employer was seeking to fill; (3) the employee was rejected; and (4) the employer continued seeking applicants with similar qualifications after the rejection.(fn44) By satisfying these four elements, which comprise the first prong of the McDonnell Douglas three-prong test, the employee creates an inference that the employer's actions were cliscriminatory.(fn45)

Once an employee establishes a prima facie case of discrimination, the burden shifts to the employer to satisfy the second prong of the McDonnell Douglas test.(fn46) Under the second prong, the employer must "articulate some legitimate, nondiscriminatory reason for the employee's rejection."(fn47) If this burden is met, the employee can prevail only by establishing that the employer's "legitimate" reason was, in...