Individual Claims of Disparate Treatment

Author:George Rutherglen

McDonnell Douglas and Its Limits

The standard analysis of individual claims of disparate treatment was set forth by the Supreme Court in McDonnell Douglas Corp. v. Green.[32]

The Court held that the plaintiff, who had alleged racial discrimination in hiring, had the burden of producing evidence (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications.[33]

If the plaintiff carries this burden, then the defendant has the burden of production "to articulate some legitimate, nondiscriminatory reason for the employee's rejection."[34] If the defendant then carries this burden, the burden of production shifts back to the plaintiff "to show that [the defendant's] stated reason for [the plaintiffs] rejection was in fact pretext."[35]

The Court emphasized that this structure of shifting burdens of production was not the only way to prove an individual claim of disparate treatment.[36]

Disparate treatment can also be proved by direct evidence of discrimination, such as a statement by a supervisor that reveals an intent to treat an employee differently on the basis of sex.

The narrowness of the holding in McDonnell Douglas has become apparent in subsequent cases. The Court has made clear that its structure of burdens of proof does not apply to reverse discrimination claims, at least as it is literally framed.[37] This structure shifts only the burden of production, not the burden of persuasion, to the defendant;[38] and it imposes on the defendant only the burden of articulating a legitimate, nondiscriminatory reason,[39] not of proving that the offered reason was closely related to performance on the job.[40]

The limited scope of McDonnell Douglas is apparent from the way in which the elements of the plaintiffs prima facie case are defined.

The first element, membership in a minority group, simply does not apply to claims of reverse discrimination.[41] Some courts have tried to avoid this difficulty through the simple expedient of identifying whites as a "protected class" equivalent to a minority group.[42] Other courts have required additional evidence of background circumstances supporting an inference of reverse discrimination.[43] Still others have adapted the defendant's rebuttal case to claims of reverse discrimination by allowing evidence of a permissible affirmative action plan to serve as a legitimate, nondiscriminatory reason for the disputed decision.[44] This last alternative has been taken up by the Supreme Court in a little-noticed passage[45] that places the burden on the plaintiff of proving that an affirmative action plan is a pretext for discrimination.

This passage seems to assume that a valid affirmative action plan constitutes a "legitimate, nondiscriminatory reason," even though it allows the employer explicitly to take account of race, national origin, or sex.

Although proof of intentional discrimination must somehow be reconciled with the scope of permissible affirmative action, this cannot be accomplished simply by modifying the shifting burdens of production in McDonnell Douglas. These burdens leave open the possibility of proving intentional discrimination by other means, including direct evidence that the employer relied on a prohibited characteristic.[46]

No better direct evidence can be found than proof that the employer relied on an affirmative action plan which, by definition, involves consideration of an otherwise prohibited characteristic. Although the employer must be given the opportunity to present evidence that its affirmative action plan is permissible, this evidence does not easily fit within the framework of McDonnell Douglas; affirmative action is better characterized as a legitimate discriminatory reason than as a legitimate nondiscriminatory reason. Sensing this, most courts have not relied heavily on McDonnell Douglas to resolve claims of reverse discrimination.

Other cases also fall outside the literal terms of McDonnell Douglas, including those involving claims of wrongful discharge or layoff. Excluding disability claims, the majority of employment discrimination cases are filed by employees who have lost their jobs.[47]

Two of the four elements of the plaintiffs prima facie case are rarely significant in most of these cases. The second element, that the plaintiff has the minimal qualifications for the job, almost always is satisfied; otherwise, the plaintiff would not have gotten the job in the first place. Even more than hiring cases, discharge cases focus on the qualifications above the minimum for the job and the plaintiffs failure to satisfy them. Likewise, the fourth element, that the position remained open and the employer continued to look for applicants with the plaintiffs qualifications, often is entirely irrelevant. As the layoff cases illustrate, the continued existence of the plaintiffs position does not have any bearing at all on whether the plaintiff was discharged for a discriminatory reason.

These deficiencies in McDonnell Douglas have not gone unnoticed by the lower federal courts. They have substituted various alternative elements, such as satisfactory performance until the incident giving rise to the discharge,[48] departure from the general policies on discipline or discharge usually followed by the employer,[49] or different treatment of someone from another race or other group.[50] This last alternative does not require proof that the plaintiff was replaced by someone from a different group, as the Supreme Court itself has held,"[51] although that fact might strengthen the plaintiffs claim. It only requires proof that employees like the plaintiff were subject to stricter requirements than other employees, which is, of course, just another way of stating the ultimate issue of discrimination. This last alternative replaces the entire structure of shifting burdens of production, not just a single element of the plaintiffs prima facie case.

Where the lower federal courts have tried to refine McDonnell Douglas, the Supreme Court has been more concerned with limiting its overall significance. The lower federal courts have tried to make more of the burden of proof than has the Supreme Court in order to resolve the many cases that come before them. Yet the ease with which each party can satisfy its burden has left them to resolve most cases on the issue of pretext, which is just another way of framing the ultimate issue of discrimination. The Supreme Court, not faced with the need to decide a large number of routine cases, has emphasized the limited significance of all aspects of the burden of production. The Court has said repeatedly that the burden of persuasion always remains with the plaintiff,[52] that the employer's burden of articulating a legitimate nondiscriminatory reason is a light one,[53] that the plaintiff is under no obligation to specifically plead the elements of a prima facie case,[54] and that most cases should be resolved on the factual issue of whether discrimination occurred instead of the legal issue of whether the burden of production has been satisfied.[55] Most recently, the Supreme Court has held that McDonnell Douglas does not establish a rule of pleading and that the elements of the plaintiffs prima facie case need not be specifically alleged in the complaint.[56]

McDonnell Douglas and the Right to Jury Trial

The Supreme Court began to address the issue of how much evidencthe plaintiff needed to survive a motion for summary judgment or fodirected verdict in St. Mary's Honor Center v. Hicks.[57] Although thicase was tried to a judge, it raised the question whether the plaintifcould prevail simply by discrediting the legitimate nondiscriminatorreason offered by the defendant. Hicks, a supervisor of the St. Mary'Honor Center, a halfway house operated by a state prison system, alleged that he had been discharged because he was black. In its defensethe employer offered as its legitimate, nondiscriminatory reason thfact that the subordinates supervised by Hicks had violated the rulefor operation of the center. The district court rejected...

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