Individual Claims of Intentional Discrimination

• Pages: 35-58
• Author: George Rutherglen

35

Chapter 3

INDIVIDUAL CLAIMS OF

INTENTIONAL DISCRIMINATION

The great majority of employment discrimination cases involve

claims of intentional discrimination asserted by individual

plaintiffs.

1

Although large in number, these cases do not usually

attract much publicity or attention. They do not involve large classes

of employees and they do not challenge affirmative action plans (a

topic to be taken up in Chapter 5). They are, instead, cases in which

an individual plaintiff claims that an adverse personnel decision was

based on a prohibited characteristic, of which race is the paradigm

and to which others have since been added. Because such claims form

so large a part of the caseload, they raise issues of enormous

significance in the interpretation and enforcement of the laws

against employment discrimination.

The most heavily litigated issue, and the one to which this

chapter is devoted, is the definition of intentional discrimination, an

issue worked out mainly through allocation of the burden of proof.

The opinions on burden of proof have succeeded in formulating a

consistent set of doctrinal rules. They have been less successful in

achieving the broader goals of assuring consistent resolution of

employment discrimination claims, controlling allocation of issues

between judge and jury, and expediting the overall process of

settlement and litigation. The tension between the actual effects of

doctrinal rules and what they were designed to accomplish, here as

elsewhere in the law, results in continuing litigation and continuing

attempts to improve upon existing law.

This chapter begins with an analysis of the statutory

prohibitions against intentional discrimination, followed by a

detailed discussion of the leading decision on burdens of proof in

individual cases of intentional discrimination, McDonnell Douglas

Corp. v. Green.

2

The discussion then turns to subsequent refinements

and limitations on the holding of McDonnell Douglas, first in the case

law and then through amendments to Title VII. This chapter

concludes with an assessment of what the allocation of burdens of

proof actually has accomplished in defining intentional

discrimination.

1

John J. Donohue III & Peter Siegelman, The Changing Nature of

Employment Discrimination, 43 Stan. L. Rev. 983, 1019–21 (1991).

2

411 U.S. 792 (1973).

36

INDIVIDUAL CLAIMS OF

INTENTIONAL DISCRIMINATION

Ch. 3

A. Statutory Definitions of Discrimination

Title VII does not contain any definition of intentional

discrimination as a technical term of art. Neither do any of the other

statutes modeled on Title VII. In this respect, the statutory law of

employment discrimination follows constitutional law in leaving the

exact nature of what is prohibited without any precise definition. In

fact, the phrase “intentional discrimination” is at least partly

redundant. All discrimination is intentional in some sense because it

requires noticing or acting on some kind of distinction. In ordinary

English, outside of civil rights law, the phrase “to discriminate”

carries no negative connotations and simply means to “make a

distinction,” which is an activity that cannot be done inadvertently

or accidentally. Exactly what kind of distinction transforms

discrimination into a morally disapproved and legally prohibited

activity remains controversial, but the most natural answer is found

in the main statutory prohibitions against employment

discrimination.

In Title VII, these prohibitions are framed in very broad terms

that encompass virtually all employment practices, including any

form of discrimination or segregation affecting an individual’s

employment “because of such individual’s race, color, religion, sex, or

national origin.” The language “because of” supports an

interpretation of intentional discrimination in terms of reasons for

action. An employer cannot use any of the prohibited characteristics

as a reason for making any kind of personnel decision. The quoted

language focuses on the employer’s process of decision making—on

what goes into an employer’s decision rather than what comes out of

it. The intentional aspect of discrimination is simply presumed as

part of the process of using a prohibited reason.

The closest that Title VII comes to recognizing the role of

intention in discrimination is in two provisions authorizing remedies

only for “intentional” violations of the statute. An indication of the

difficulties involved in defining intentional discrimination is that the

word “intentional” in these provisions has been interpreted in two

quite different ways. In one, the action is intentional only insofar as

it involves an intent to make a decision with respect to employment.

This is the meaning that “intentional” is given in the provision that

authorizes general equitable remedies against a defendant who “has

intentionally engaged in or is intentionally engaging in an unlawful

employment practice.”

3

All disputed personnel decisions are

intentional in this sense because an employer invariably intends to

affect the terms and conditions of employment by making any such

3

§ 706(g), codified as 42 U.S.C. § 2000e–5(g)(1) (2018).