Girls Rule, Boys Drool . . . and Must Apply: an Analysis of the Eighth Circuit's Perplexing Approach to a Failure-to-apply Case in Eeoc v. Audrain Health Care, Inc., 756 F.3d 1083 (8th Cir. 2014)

• Publication year: 2021

94 Nebraska L. Rev. 193. Girls Rule, Boys Drool . . . and Must Apply: An Analysis of the Eighth Circuit's Perplexing Approach to a Failure-to-Apply Case in EEOC v. Audrain Health Care, Inc., 756 F.3d 1083 (8th Cir. 2014)

Girls Rule, Boys Drool . . . and Must Apply: An Analysis of the Eighth Circuit's Perplexing Approach to a Failure-to-Apply Case in EEOC v. Audrain Health Care, Inc., 756 F.3d 1083 (8th Cir. 2014)

Note(fn*)

TABLE OF CONTENTS

I. Introduction .......................................... 194

II. Background ........................................... 195

A. Proving Discrimination Generally Under Title VII. . 195

1. The Direct Evidence Route ..................... 196

a. Mixed-Motives ............................. 196

2. The McDonnell Douglas Framework ............ 197

B. The Genesis of the Futile Gesture Doctrine ........ 198

1. The Futile Gesture Doctrine-Some Things Never Change ................................. 200

2. Failure-to-Apply Cases in the Eighth Circuit . . . 201

C. EEOC v. Audrain Health Care, Inc ................. 202

1. Facts .......................................... 202

2. The Eighth Circuit Weighs In .................. 204

III. Analysis .............................................. 205

A. The Eighth Circuit Wrongly Circumvented the Direct Evidence Discussion ........................ 206

B. "Reverse Discrimination": The (White) Elephant in the Room ......................................... 209

C. Failure-to-Apply: An Employer's Free Pass Under the McDonnell Douglas Framework ................ 211

D. Every Reasonable (Ambitious) Effort ............... 212

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E. The Legal Landscape After Audrain ............... 216

IV. Conclusion ............................................ 218

I. INTRODUCTION

Gary is interested in the open tax attorney position he saw posted in the law firm's kitchen. Gary was recently approved to transfer to an employment law position. The firm's transfer policy states that to be eligible for a transfer, a lawyer must serve in his or her current position for at least six months unless the two impacted directors, in this case the tax and employment law directors, agree to an early transfer. Six days before Gary is scheduled to start working in the employment law position, he approaches Sally, the tax department director, and tells her he is interested in the open tax position. Sally replies, "Gary, we are really looking to hire a woman for this position." Sally does not consider Gary's qualifications and dismisses him solely because of his gender. Sally believes having more women in the tax department will make the female clientele feel more secure. How does Gary respond? Does he trudge ahead and apply anyway? Does he beg Sally and other members of the firm to reconsider? Or does he walk away, believing there is no point in applying? Gary decides not to apply, understanding that only females will be considered, and brings suit for gender discrimination under Title VII.

According to the Eighth Circuit, Gary is not entitled to relief because he failed to apply for the position. Under Eighth Circuit precedent, Gary did not suffer an adverse employment action because he was not actually denied the position. The Eighth Circuit's precedent does not support a conclusion that Sally's statement meant the firm systematically discriminated against men. To prevail on his claim, Gary would have to show he made every reasonable effort to convey his interest in the position to the law firm, and Eighth Circuit precedent indicates that he did not do so. Gary does not understand what was unreasonable about walking away after being told he would not be hired because he is a man. After EEOC v. Audrain Health Care, Inc.,(fn1) Gary is left with neither a remedy, nor an explanation.

This Note focuses on the narrow question of what the Eighth Circuit requires of plaintiffs in failure-to-apply cases, such as Gary's, and illustrates how the proper approach would have affected the outcome in EEOC v. Audrain Health Care, Inc. Part II of this Note provides a legal background of Title VII and the genesis of the futile gesture doctrine as articulated by International Brotherhood of Teamsters v. United States.(fn2) Additionally, Part II discusses EEOC v. Audrain Health Care, Inc., including the factual background and the holding.

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Part III argues the Audrain Court: (a) erred in concluding the employer's statement was not direct evidence; (b) wrongly implied additional elements for majority plaintiffs in this case, and; (c) provided a free pass for the employer through rigid application of the McDonnell Douglas framework. Part III continues by exploring how the Eighth Circuit's new reasonable-ambitious standard turns thirty-seven-year-old Supreme Court precedent on its head, as well as the consequences that followed and which the Eighth Circuit could have avoided. Finally, Part IV concludes that the Eighth Circuit's perplexing approach to failure-to-apply claims penalizes individual plaintiffs in disparate treatment actions and gives the employer a free pass to avoid liability.

II. BACKGROUND

A. Proving Discrimination Generally Under Title VII

The goal of Title VII of the Civil Rights Act of 1964(fn3) is to compensate individuals who suffered as a result of an unlawful employment practice.(fn4) Most often, Title VII litigation involves disparate treatment claims.(fn5) When an employer makes an individual employment decision based on a protected trait, he or she engages in disparate treatment.(fn6) In a Title VII action, the plaintiff bears the initial burden of

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establishing a prima facie case of discrimination.(fn7) A plaintiff can make his prima facie case of discrimination in one of two ways.

1. The Direct Evidence Route

First, "[t]he employee may produce direct evidence of discrimination, which is 'evidence showing a specific link between the alleged discriminatory animus and the challenged decision, sufficient to support a finding by a reasonable fact finder that an illegitimate criterion actually motivated the adverse employment action.'"(fn8) Under the direct evidence model, the question is "whether the [decision maker's] statements lead to the conclusion that the adverse action was taken because of the person's protected status without inference or presumption."(fn9) No "magic words," such as "because of," are required to establish direct evidence.(fn10)

a. Mixed-Motives

When the plaintiff has direct evidence of discrimination, he or she can proceed with a mixed-motives claim.(fn11) In mixed-motive claims, the plaintiff has evidence that a protected trait played a role in the employer's decision, but the employer also has legal justifications for making its decision.(fn12) In this situation, the fact finder does not have to choose whether to believe the employer or plaintiff. Instead, the fact finder must determine what to do when both the legal and illegal criterion motivated the employer's decision.(fn13) Because of the strength of the plaintiff's evidence, it is the defendant who bears the burden of proving by "a preponderance of the evidence that it would have made the same decision even if it had not taken the [protected characteristic] into account."(fn14) Such a showing relieves an employer of liability under Title VII.

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The Civil Rights Act of 1991 added § 2000e-2(m)(fn15) to Title VII, which provides: "[A]n unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice."(fn16) Under the Act, a mixed-motive plaintiff can recover declaratory relief, injunctive relief, and attorney fees and costs, if the defendant was at all motivated by the protected trait.(fn17) The Eighth Circuit will only allow a plaintiff to proceed with a mixed-motives claim if he or she has direct evidence of discrimination.(fn18) If the plaintiff does not have direct evidence, he or she may create an inference of discrimination through the McDonnell Douglas burden-shifting framework.(fn19)

2. The McDonnell Douglas Framework

Under the McDonnell Douglas framework, a plaintiff must make a prima facie showing by demonstrating the following: (1) the plaintiff is a member of a protected class; (2) the plaintiff applied and was qualified for a job for which the employer was seeking applicants; (3) despite the plaintiff's qualifications, the employer rejected the plaintiff; and (4) after the plaintiff's rejection, the position remained open and the employer continued to seek applicants from persons possessing the plaintiff's qualifications.(fn20) If the plaintiff can establish a prima facie case, the defendant then bears the burden of articulating a legitimate, nondiscriminatory basis for the alleged adverse action.(fn21) If the defendant meets its burden, the plaintiff must show a genuine issue of fact exists as to whether the defendant's stated reason for the adverse action is pretextual.(fn22) Said otherwise, the plaintiff must prove that his or her protected trait was the real reason for the employer's ac-

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tion.(fn23) It should be noted that the defendant in a pretext case at no time has to prove he or she did not discriminate, only that there was a nondiscriminatory reason for the decision.(fn24)

The third...