The replacement dilemma: an argument for eliminating a non-class replacement requirement in the prima facie stage of Title VII individual disparate treatment discrimination claims.

• Author: Swartz, Marla
• Position: Case Note

INTRODUCTION I. SOLVING THE DILEMMA WITH AN EYE TO O'CONNOR V. CONSOLIDATED COIN CATERERS CORP. A. Bridging the Gap Between the Logical Connection Test and the Substantially Younger Requirement B. The Individual Protection Bridge: Applying O'Connor Beyond the Boundaries of the ADEA II. SOLVING THE DILEMMA WITH AN EYE TO PRIMA FACIE PURPOSES III. SOLVING THE DILEMMA WITH AN EYE BURDEN-SHIFTING GOALS CONCLUSION INTRODUCTION

Although manifestations of discrimination in the workplace have changed greatly over time, employment discrimination continues to be a tremendous problem in society. (1) By enacting Title VII of the Civil Rights Act of 1964 ("Title VII"), Congress shielded employees from arbitrary adverse employment actions arising from discrimination related to race, color, religion, sex, or national origin. (2) Three years later, Congress passed the Age Discrimination in Employment Act ("ADEA"), (3) guaranteeing the same protections against discrimination based on age. (4) Finally, the Americans with Disabilities Act ("ADA"), (5) passed in 1990, prohibited discrimination based on personal disability.

Ten years after Congress enacted the Civil Rights Act, the Supreme Court developed a comprehensive framework for presenting and analyzing these cases. (6) In McDonnell Douglas Corp. v. Green, (7) the Court outlined a three-part sequence for handling individual disparate treatment claims. First, the plaintiff presents a prima facie case of discrimination. (8) Next, the burden shifts to the employer to articulate a "legitimate, nondiscriminatory reason" for the adverse employment action. (9) Finally, the plaintiff has the opportunity to prove that the employer's allegedly nondiscriminatory reason is a pretext for discrimination. (10)

In addition to creating this burden-shifting procedure, the McDonnell Douglas decision is also widely cited for identifying four factors that a plaintiff may use to establish a prima facie case. (11) Despite the particularity of this list, the Court was clear that because facts vary in Title VII cases, the specific proofs needed to sustain a prima facie case would vary from plaintiff to plaintiff. (12)

Since McDonnell Douglas, the Court has only paused once to consider what exactly a plaintiff must prove to establish his prima facie case of discrimination. In O'Connor v. Consolidated Coin Caterers Corp., (13) the Court held that an ADEA plaintiff is not compelled to show replacement at work by someone outside his protected class in order to maintain a prima facie case of discrimination. (14)

While the O'Connor decision assumed that the McDonnell Douglas framework applied to the ADEA, (15) the Court in O'Connor made no mention of whether this particular ADEA decision applies to other discrimination claims. (16) Thus, the Supreme Court has remained vague in its Title VII jurisprudence regarding exactly what types of evidence a plaintiff must demonstrate to establish a prima facie case. By not confronting the issue of Title VII prima facie requirements directly, the Supreme Court created a void in the body of Title VII jurisprudence regarding what a plaintiff must demonstrate to establish a prima facie case of discrimination. (17)

Lower courts are inconsistent in deciding whether an employee must show that her job replacement is someone outside her protected class to sustain her prima facie burden under Title VII. (18) Several courts require a plaintiff to prove as part of her initial burden that her work replacement is someone not in her protected class. (19) Other courts explicitly reject a non-class replacement requirement, only to impose other formulaic tests and comparative evidence requirements that continue to limit plaintiffs' claims. (20) At the opposite end of the continuum, some courts take more flexible approaches to the plaintiff's prima facie requirements. Under these approaches, while non class replacement "may help to raise an inference of discrimination ... it is neither a sufficient nor a necessary condition." (21) Yet even those courts that regularly adopt flexible approaches to the prima facie stage are inconsistent in articulating, applying, or enforcing the standard. (22) A court might articulate non-class replacement as a requirement, but then simply consider non-class replacement as a factor. (23) Conversely, a court will sometimes use a more strict formulation than that which it normally requires because the plaintiff is able to satisfy the more stringent test, but then deliberately state that the court is expressing "no opinion on whether" that is the "proper articulation." (24) Even appellate courts that regularly denounce a non-class replacement requirement will often hold as harmless errors district court formulations of the standard that are more rigid than required, or jury instructions that blatantly misstate the law. (25)

This Note argues that the Supreme Court should explicitly eliminate non-class replacement as a requirement, and establish a multifactor approach to the prima facie stage of the individual disparate treatment inquiry. Under this approach, non-class replacement would merely be one factor in a court's overall inquiry to decide whether the plaintiff has presented evidence sufficient to "give rise to an inference of unlawful discrimination." (26) Part I demonstrates that the principles in O'Connor support eliminating non-class replacement as a requirement and adopting a multifactor approach to the prima facie case, and that this analysis is equally applicable in the Title VII arena. Part II suggests that a multifactor approach is compatible with the limited functions the prima facie stage serves within the burden-shifting framework. Part III asserts that a multifactor approach to the prima facie stage is also appropriate because of the overall goals of a burden-shifting regime, which has been interpreted by courts as a flexible procedure. This Note concludes that a multifactor approach to the plaintiff's prima facie burden in Title VII cases, including the elimination of a non-class replacement requirement, most accurately reflects the overall structure and purposes of individual disparate treatment burden shifting, as well as current interpretations of the prima facie stage.

1. SOLVING THE DILEMMA WITH AN EYE TO O'CONNOR V. CONSOLIDATED COIN CATERERS CORP.

   This Part asserts that eliminating a non-class replacement requirement and adopting a multifactor approach to the prima facie case are consistent with the requirements that the Supreme Court articulated in O'Connor regarding both logical connection to discrimination and protection of individual plaintiffs. Section I.A contends that a multifactor approach honors both the logical connection test and the substantially younger requirement detailed by the Court in O'Connor. Section I.B argues that given the similarity in statutory language and purpose between the ADEA and Title VII, the multifactor approach to the prima facie stage suggested by the individual protection language in O'Connor is equally applicable to all discrimination statutory claims, including Title VII actions.

   1. Bridging the Gap Between the Logical Connection Test and the Substantially Younger Requirement

      This Section shows how eliminating a non-class replacement requirement and adopting a multifactor approach to the prima facie stage synthesizes the logical connection test and the substantially younger requirement articulated by the Court in O'Connor.

      The O'Connor decision articulates two standards that lower courts should consider when making a prima facie assessment of a plaintiff's ADEA claim--the logical connection test and the substantially younger requirement. (27) The best way for lower courts successfully to satisfy both principles is to eliminate a non-class replacement requirement and adopt a multifactor approach to the prima facie stage in all disparate treatment discrimination cases.

      The O'Connor decision requires "at least a logical connection between each element of the prima facie case" and the eventual finding that the plaintiff has, or has not, raised a sufficient inference of discrimination to carry him to the next stage. (28) In O'Connor, the Court found that requiring the plaintiff to demonstrate that someone outside the protected class replaced him was not invariably logically connected to the determination of his case. The Court illustrated this conclusion by creating a hypothetical forty-year-old plaintiff, and reasoning that it would be absurd to determine that a thirty-nine-year-old plaintiff replacing a forty-year-old plaintiff would suggest a greater inference of discrimination than if a forty-year-old plaintiff replaced the fifty-six-year-old O'Connor. (29)

      The Court took the argument one step further and declared that "the fact that an ADEA plaintiff was replaced by someone outside the protected class is not a proper element of the McDonnell Douglas prima facie case." (30) The O'Connor decision appeared to abolish any possibility of a non-class replacement requirement in future ADEA individual disparate treatment decisions. By creating the logical connection test, the Court eliminated non-class replacement as a dispositive requirement.

      Despite the strength with which the logical connection test eliminates non-class replacement as a prima facie requirement in age discrimination, subsequent language in the O'Connor decision suggests many circumstances in which considering the characteristics of the employee who replaced the plaintiff would be possible, or perhaps even required. In addition to the logical connection test, the O'Connor decision suggested that an inference of age discrimination could not "be drawn from the replacement of one worker with another worker insubstantially younger." (31) Although the Court did not frame this substantially younger factor as a reintroduction of a non-class replacement requirement, lower courts have seized on the "insubstantially younger"...