Title Vii Disparate Treatment Claims

• Publication year: 2021

76 Nebraska L. Rev. 900. Title VII Disparate Treatment Claims

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Karen A. Haase*

Mixed Metaphors: Model Civil Jury Instructions for Title VII Disparate Treatment Claims

TABLE OF CONTENTS

I. Introduction 900
II. Disparate Treatment Metaphors 901
A. Pretext 903
B. Mixed Motives 905
III. Civil Rights Act of 1991 906
IV. Mixing the Metaphors: Model Instruction 5.01 907
V. Why the Model Instructions Are Wrong 909
VI. Applying the Metaphors: Judicial
Interpretations of the Civil Rights Act of 1991 911
A. United States Supreme Court Interpretations 912
B. Interpretations by the Eighth Circuit
Court of Appeals 912
C. Interpretations by Other Circuit Courts of Appeals. 915
VII. Restoring the Pretext Metaphor 918
VIII. Conclusion 919

I. INTRODUCTION

At a recent en banc meeting of the United States District Court for the Eastern District of Missouri, District Judge Charles A. Shaw complained about the "overabundance" of employment discrimination

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cases on his docket. Fellow Judge George F. Gunn quipped in reply, "You mean you have other kinds of cases?"(fn1)

Employment discrimination is one of the fastest growing areas of civil litigation, and courts report that they are being "swamped" with these claims.(fn2) Motivated in part by a desire to assist litigants through the labyrinth of employment discrimination law, and in part by a need to control their dockets, district courts in the Eighth Circuit have begun to develop standardized forms for use in these cases.(fn3) One of the innovations in standardization is the Manual of Model Civil Jury Instructions for the District Courts of the Eighth Circuit(fn4) (Model Instructions).

Many, if not all district courts and lawyers consult the Model Instructions when drafting the charges that will guide a jury's deliberations. Nevertheless, although they are standardized, the accuracy of the Model Instructions is not guaranteed. This no doubt will come as a surprise to some readers. Common among courts and practitioners is the misconception that the United States Court of Appeals for the Eighth Circuit plays some role in formulating or approving the Model Instructions.(fn5) In fact, these pattern instructions are drafted by a committee, and no member of the Court of Appeals participates in the work of that committee. The court does not promulgate these instructions, and it "approve[s] of the model instructions only as they are individually litigated and upheld by th[e] court on a case-by-case basis."(fn6) Thus, it is important that scholars and practitioners, particularly those within the Eighth Circuit, critically examine these instructions.

This Article undertakes such an inquiry, scrutinizing the charge recommended by the Model Instructions in Title VII disparate treatment claims. The examination begins with a brief review of two Title VII metaphors: pretext and mixed-motive disparate treatment discrimination claims. It then reviews the changes made to those metaphors by the Civil Rights Act of 1991.(fn7) Part IV scrutinizes the disparate treatment jury charge recommended by the Model Instruct

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ions, and Part V discusses why the instructions are erroneous. Next, the Article examines cases from the Eighth Circuit Court of Appeals and other United States Courts of Appeals, concluding that the Model Instructions are inconsistent with these precedents. Finally, this Article proposes an improved formula jury instruction along with an alternative interpretation of the Civil Rights Act of 1991.

II. DISPARATE TREATMENT METAPHORS

Title VII makes it unlawful for employers to "discriminate . . . because of" an employee's "race, color, religion, sex, or national origin."(fn8)The statute does not define "discriminate,"(fn9) so the courts have devel

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oped a sophisticated body of law designed to distinguish unlawful discrimination from legitimate employment decisions. These precedents rely on the use of different models or metaphors for illegal discrimination. As a result, this jurisprudence has resembled an amoeba: discrimination was the starting point, which Congress then split into two types-lawful and unlawful. Unlawful discrimination then itself divided into two types of prohibited conduct-disparate impact and disparate treatment. Each of those cells then split, and so on. The Model Instructions abolish the distinction between two of these "cells."(fn10) To see the importance of these instructions, the categories' evolution must be traced.

The first junction of Title VII case law deals with two different kinds of alleged discrimination as created by the United States Supreme Court in International Brotherhood of Teamsters v. United States.(fn11) The Court distinguished "disparate treatment" from "disparate impact" discrimination.(fn12) An employer engages in disparate impact discrimination when it adopts policies that burden protected employees more than others.(fn13) An employer engages in disparate treatment discrimination when it makes individual employment decisions based on prohibited criteria.(fn14)

The most common type of Title VII litigation involves disparate treatment discrimination.(fn15) As the volume of this litigation increased, courts divided approaches to the applicable theory into two classes-

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pretext and mixed motive.(fn16) It is the distinction between these two claims that the Model Instructions incorrectly addresses.

A. Pretext

Under the pretext metaphor, plaintiffs argue that they were fired because of some constitutionally protected characteristic, and any other explanation offered by the employer simply is not true. These claims, defined by the seminal case of McDonnell Douglas v. Green,(fn17)proceed within a three-part framework.(fn18)First, plaintiffs must prove a prima facie case(fn19) by establishing that (1) they are a member of a protected class; (2) they are qualified for the job; (3) they were rejected; and (4) the job remained available and was later filled by a less qualified applicant.(fn20) In proving a prima facie case, the plaintiff creates a rebuttable presumption that the employer violated Title VII.(fn21)The defendant must then articulate a legitimate, nondiscriminatory

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reason for the adverse employment action(fn22) that rebuts the presumption created by the plaintiff's prima facie case.(fn23)

Understanding the defendant's burden at this point is crucial. The defendant merely must present admissible evidence that there is a nondiscriminatory reason for its actions.(fn24) As the Supreme Court recently made clear in St. Mary's Honor Center v. Hicks,(fn25) however, at no time during a pretext case does a defendant have to prove it did not discriminate.(fn26) Thus, in a pretext claim, the fact-finder can conclude that the defendant's explanation is not the true reason it acted and yet find that the employer did not violate Title VII. The Court emphasized that no authority supports imposing liability on a defendant under Title VII unless a fact-finder determines that the employer unlawfully discriminated.

Therefore, the third step of a pretext claim is the place where plaintiffs must do their real work: proving pretext. This burden may be carried in any number of common sense ways: the plaintiff may demonstrate that when making previous decisions, the employer never relied on the offered explanation;(fn27) the employer did not offer or explain the reason to the plaintiff at the time of the action;(fn28) or the plaintiff had superior qualifications compared to the replacement worker.(fn29) In sum, the plaintiff must cast sufficient doubt on the defendant's legitimate nondiscriminatory reasons to allow the fact-finder to conclude that a discriminatory motive more likely than not motivated the defendant's actions.(fn30) If the plaintiff establishes that the true reason for the employer's action was based on a statutorily

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protected characteristic of the employee, the plaintiff will prevail under the pretext metaphor.

B. Mixed Motives

Mixed-motives claims are both procedurally and factually much different than pretext claims. The "mixed-motive problem" arises when the plaintiff has "direct evidence"(fn31) that an illegal factor played a role in the employer's decision, yet the employer has evidence that other, legal factors also played a role in its decision. The dilemma in a mixed-motive case is not choosing whether to believe the employee's story (religion motivated the demotion) or the employer's story (insubordination motivated the demotion). The question is what to do when religion and insubordination motivated the decision.

In Price Waterhouse v. Hopkins,(fn32) the Supreme Court held(fn33) that mixed-motives claims could not be analyzed under the pretext model,

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but required their own metaphor.(fn34) A majority of the Court agreed that it would be unfair to force the plaintiff to prove that gender was the reason the employer acted when the plaintiff already had presented direct evidence that gender was a reason the employer acted.(fn35) Instead, six Justices agreed that this stronger evidence(fn36) justified shifting the ultimate burden of persuasion to the defendant to prove it did not discriminate. Thus, in mixed-motives cases, unlike pretext cases, the defendant must prove it did not violate Title VII by proving by "a preponderance of the evidence that it would have made the same decision even if it had not taken the [prohibited characteristic] into account."(fn37)

The dissent argued that it was unfair to create a class of discrimination claims wherein "it is not the plaintiff who must prove the existence of causation, but the defendant who must prove its absence."(fn38)All of the Justices agreed, however, that an employer could avoid liability altogether if it proved that it would have made the same decision under the circumstances without...