Volume 17
Number 4
Winter 1998
QLR
Articles
REMODELING MCDONNELL DOUGLAS: FISHER V. VASSAR
COLLEGE AND THE STRUCTURE OF EMPLOYMENT
DISCRIMINATION LAW
By David N. Rosen* and JonathanM. Freiman**
I. INTRODUCTION
In Fisher v. Vassar College,' the Second Circuit debated, long and
fractiously, the meaning of a central structure of employment discrimination law: the sequence of proof created by the Supreme Court in
McDonnell Douglas Corp. v. Green. McDonnell Douglas involved a
* B.A., Harvard College, 1965; LL.B., Yale Law School, 1969; Member, Rosen & Dolan,
P.C., New Haven, Connecticut.
**B.A., Oberlin College, 1987; J.D., Yale Law School, 1998; Law Clerk to the Hon. Louis
H. Pollak, Senior United States District Judge for the Eastern District of Pennsylvania. The
views expressed in this article are solely the authors'. Many thanks to Anne Dailey, Barbara
Goren, and Kevin Stack for helpful comments on earlier drafts.
1. 114 F.3d 1332 (2d Cir. 1997) (en banc), cert. denied, 118 S. Ct. 851 (1998).
2. 411 U.S. 792 (1973).
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[Vol. 17:725
claim of a racially discriminatory refusal to hire.3 The Court said that
the plaintiff:
must carry the initial burden under the statute of establishing a prima facie
case of racial discrimination. This may be done by showing (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.
In a footnote, the Court added that "[t]he facts necessarily will vary
in Title VII cases, and the specification above of the prima facie proof
required from [the plaintiff] is not necessarily applicable in every respect to differing factual situations."5 A plaintiff's proof of a prima facie case, the Court continued, shifts a burden to the employer "to articulate some legitimate, nondiscriminatory reason for the employee's
rejection., 6 If the employer discharges this burden, the employee then
"must... be afforded a fair opportunity" to show that the employer's
explanation is "a pretext. 7
This three-step sequence of prima facie case, nondiscriminatory
reason, and pretext8 has remained the prescribed structure for claims of
intentional employment discrimination for the past quarter century. 9
3. See id. The claim was a refusal to rehire, since the plaintiff had worked for
McDonnell Douglas before being laid off. See id. at 796.
4.
5.
6.
7.
Id. at 802.
McDonnell Douglas, 411 U.S. at 802 n.13.
Id. at 802.
Id. at 804.
8.
The sequence has acquired the faintly contemptuous label, the McDonnell Douglas
"minuet."
See, e.g., Deborah C. Malamud, The Last Minuet: Disparate Treatment After
Hicks, 93 MICH. L. REv. 2229, 2232 n.16 (1995). The Fishermajority used the term. See
Fisher, 114 F.3d at 1343.
9. In Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (plurality opinion), the Court
adopted a different proof structure in so-called mixed motives cases. In such cases, the employee has an initial burden of showing that discrimination played some role in the adverse
decision. The employer then can respond by showing that it would have made the same decision anyhow. See id. at 244-45. The Civil Rights Act of 1991 adopted the Price Waterhouse structure, with a twist. Even if the employer carries its burden, an employee is entitled
to nominal damages and attorneys' fees if discrimination played some part in the adverse
decision. See 42 U.S.C. § 2000e-2(m) (1994); see also, e.g., Perkins v. Brigham & Women's
Hosp., 78 F.3d 747, 750 n.5 (1st Cir. 1996). In practice, following Justice O'Connor's concurring opinion in Price Waterhouse, courts have applied the Price Waterhouse structure to
cases where there is "direct" evidence of discrimination and the McDonnell Douglas structure to cases where there is not. The Second Circuit has defined "direct" evidence for these
purposes as "evidence of conduct or statements by persons involved in the decisionmaking
1998]
FISHER v. VASSAR COLLEGE
The Supreme Court has revisited the structure in a series of cases, most
notably Texas Department of Community Affairs v. Burdine'° and St.
Mary's Honor Center v. Hicks." Writing for a unanimous Court in
Burdine-as he had in McDonnell Douglas-Justice Powell outlined
two major holdings: The employer's burden of responding to the plaintiff's prima facie case by articulating a nondiscriminatory reason for its
action is a burden only of production, not persuasion, and, relatedly, the
employer need not prove that the candidate it selected was more qualified than the plaintiff. Hicks held that a finding of pretext did not
compel judgment for the plaintiff: Judgment for the plaintiff requires
the factfinder to determine that the pretext was a pretext for discrimination, rather than for some other (nondiscriminatory) motive.' 3
In Fisher, the Second Circuit addressed the question implicitly
process that may be viewed as directly reflecting the alleged discriminatory attitude." Ostrowski v. Atlantic Mut. Ins. Cos., 968 F.2d 171, 182 (2d Cir. 1992). Following a commentator, the court has termed its approach "circumstantial-plus." Fields v. New York State Office of Mental Retardation and Developmental Disabilities, 115 F.3d 116, 122 (2d Cir. 1997)
(quoting Michael A. Zubrensky, Note, Despite the Smoke, There Is No Gun: DirectEvidence
Requirements in Mixed-Motives Employment Law After Price Waterhouse v. Hopkins, 46
STAN. L. REV. 959, 976-77 (1994)).
The panel opinion in Fisherfollowed this approach. See Fisher v. Vassar College, 70
F.3d 1420, 1433 (2d Cir. 1995), affid, 114 F.3d 1332 (2d Cir. 1997) (en banc), and cert. denied, 118 S. Ct. 851 (1998). It concluded that there was no such direct evidence, and accordingly Fisher's only chance of prevailing was by using the McDonnell Douglas structure.
See id.
10. 450 U.S. 248 (1981). Between McDonnell Douglas and Burdine, the Court discussed the McDonnell Douglas structure on dozens of occasions. We note two cases that
figure in the discussion below.
In Furnco Construction Corp. v. Waters, 438 U.S. 567
(1978), the Court recapitulated and explained the McDonnell Douglas structure in the course
of a decision holding first that an employer need not select the hiring practice that will
maximize or optimize the number of minorities hired, and second that the racial composition
of the employer's workforce is relevant to the issue of motive. InternationalBrotherhood of
Teamsters v. United States, 431 U.S. 324 (1977), laid out the proof and procedural framework for "pattern or practice" cases under section 707(a) of Title VII. Id. at 336 n. 16. The
Court explicated the distinction between "disparate treatment" cases like McDonnell Douglas, where "proof of discriminatory motive is critical," and "disparate impact" cases like
Griggs v. Duke Power Co., 401 U.S. 424 (1971), where a plaintiff may prevail without proof
of motive by proving that a facially neutral practice has an adverse impact on a protected
group. Teamsters, 431 U.S. at 335 n.15.
11. 509 U.S. 502 (1993).
12. See Burdine, 450 U.S. at 253. The McDonnell Douglas structure stabilized with
Burdine; it is sometimes called the McDonnell Douglas-Burdinestructure. See, e.g., Fisher,
114 F.3d at 1365 (Newman, C.J., dissenting).
13. See Hicks, 509 U.S. at 515-16. In Hicks the trial court found the defendant's motive to be personal animosity rather than race discrimination. See Hicks v. St. Mary's Honor
Ctr., 756 F. Supp. 1244, 1252 (E.D. Mo. 1991), rev'd, 970 F.2d 487 (8th Cir. 1992), and
rev'd, 509 U.S. 502 (1993).
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posed by the holding in Hicks: If a finding of pretext does not require
judgment for the plaintiff, does it always permit judgment for the plaintiff? The core of the debate in Fishermay be expressed as a riddle: If it
is true that (1) a McDonnell Douglas prima facie case entitles the plaintiff to win as a matter of law unless the defendant responds with a nondiscriminatory explanation for its actions, then how can it also be true
that (2) a defendant who offers such an explanation may be entitled to
judgment as a matter of law even if the proffered explanation is not true
and is a pretext?
The Fisher dissenters thought that both statements could be true
only under very unusual circumstances-where, for instance, the evidence overwhelmingly established a nondiscriminatory motive for the
defendant's action different from that proffered by the defendant.' 4 The
majority disagreed. Proceeding from a very different understanding of
the import of both a prima facie case and a finding of pretext, the majority concluded that it would be neither paradoxical nor uncommon for
both statements to be true. 5
Fisher has all the hallmarks of a grand struggle. The court sat en
banc,'6 an infrequent occurrence in the Second Circuit." The eleven ac
tive judges who participated in the decision split 6-4-1 (Judge Calabresi
concurred in part and dissented in part). They generated five separate
opinions, including a rare co-authored majority opinion (by Judges Jacobs and Leval),' 8 a concurrence by Judge Jacobs' 9 (his third opinion in
the case, since he also authored the original panel opinion), Judge
14. See Fisher, 114 F.3d at 1361 (Newman, C.J., dissenting); see also id. at 1386
(Winter, J., dissenting). Judge Newman also identified a second circumstance, when the
evidence as a whole conclusively disproved an element of the prima facie case. See id. at
1374 (Newman, C.J., dissenting). This situation is uncontroversial because it purports not so
much to solve the riddle as to eliminate it by application of the ordinary distinction between
sufficiency of the plaintiff's proof at the conclusion of her case and sufficiency at the close
of all the evidence.
15. See Fisher, 114 F.3d at 1337-39.
16. The Fishercourt used the spelling "in banc," which is less familiar but is used in
the Federal Rules and, for that reason, among others, has been advocated by Judge Newman.
See Jon 0. Newman, Foreword: In Banc Practicein the Second Circuit: The Virtues of Restraint, 50 BROOK. L. REv. 365, 365 n.1 (1984). The Supreme Court has now turned its attention to this question and changed the spelling to "en banc," and we have deferred to that
authority. FED. R. APP. P. 35 (effective Dec. 1, 1998).
17. See Jon 0. Newman, Foreword: In Banc Practice in the Second Circuit, 19891993, 60 BROOK. L. REV. 491, 492 (1994) (finding the average to be 1.27 en banc rehearings
,per year).
18. See Fisher, 114 F.3d at 1333-47. Judges Miner, Walker, McLaughlin and Parker
joined both the majority opinion and, with Judge Leval, Judge Jacobs's concurrence.
19. See id. at 1347-54 (Jacobs, J., concurring).
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FISHER v. VASSAR COLLEGE
Calabresi's concurrence and dissent, 20 and dissents by then-Chief Judge
Newman 2 and Judge Winter. 2 All told, the opinions fill sixty pages in
the Federal Reporter.23 They read like the product of a particularly
lively session of the best law school seminar ever: each argument
sparking a counter-argument, each counter-argument provoking the
original author to reply, and so on through many rounds. Only the bell
could end such a session, and it looks as if it did here as well: The release date of the decision was the evidently self-imposed positively final
deadline of one year to the day after oral argument. Despite its length,
Fisher is an engrossing read, in part because of the obvious personal
engagement, not to say combativeness, of the participants, but even
more because of the range of arguments the opinions deploy. They go
deeply into the law of presumptions, and that discussion expands to include consideration of the constitutional limitations on shifting burdens
of proof.24 The issue of pretext prompted mini-essays on inferences
20. See id. at 1354-61 (Calabresi, J., concurring in part and dissenting in part).
21. See id. at 1361-86 (Newman, C.J., dissenting).
22. See Fisher, 114 F.3d at 1386-91 (Winter, J., dissenting). Judge Newman and
Judge Winter joined each other's dissents, and both were joined by Judges Kearse and
Cabranes.
23. The issues addressed in Fisherhave engrossed the other circuit courts as well, including four other en banc courts. Circuits that have held that a pretext finding alone always
or virtually always will suffice to authorize a finding of discrimination include the Third,
Sixth, Seventh and Ninth. See EEOC v. Yenkin-Majestic Paint Corp., 112 F.3d 831 (6th Cir.
1997); Sheridan v. E.I. DuPont de Nemours & Co., 100 F.3d 1061, 1072 (3d Cir. 1996) (en
banc) (finding the court "may not pretermit the jury's ability to draw inferences from the
testimony, including the inference of intentional discrimination drawn from an unbelievable
reason proffered by the employer"), cert. denied, 117 S. Ct. 2532 (1997); Weisbrot v. Medical College of Wis., 79 F.3d 677, 681 (7th Cir. 1996); Washington v. Garrett, 10 F.3d 1421
(9th Cir. 1993). The First, Fourth, Fifth and Eighth Circuits all authorize review of the record to determine whether there is sufficient evidence of discrimination, even after pretext has
been shown. See Runnebaum v. NationsBank of Maryland, N.A., 123 F.3d 156 (4th Cir.
1997) (en banc); Ryther v. KARE 11, 108 F.3d 832 (8th Cir.) (en banc), cert. denied, 117 S.
Ct. 2510 (1997); Rhodes v. Guiberson Oil Tools, 75 F.3d 989 (5th Cir. 1996) (en banc); Udo
v. Tomes, 54 F.3d 9, 12-13 (1st Cir. 1995). Remarkably, the Third and Fifth Circuit en banc
courts were both nearly unanimous yet reached opposite conclusions.
This disarray is reminiscent of the division after Burdine concerning whether a pretext finding required judgment for the plaintiff, the question answered in Hicks. Justice
Scalia's opinion for the Court in Hicks inventories the courts of appeals cases post-Burdine.
See Hicks, 509 U.S. at 512-13.
24. See Fisher, 114 F.3d at 1342; id. at 1354-58 (Calabresi, J., concurring in part and
dissenting in part); id. at 1364-68 (Newman, C.J., dissenting); id. at 1388 n.2 (Winter, J.,
dissenting). Judge Newman cited Western & Atd. R.R. v. Henderson, 279 U.S. 639 (1929),
and Mobile, Jackson, & Kansas City Railroad Co. v. Turnipseed, 219 U.S. 35 (1910). See
Fisher, 114 F.3d at 1364 & n.2 (Newman, C.J., dissenting). According to these cases, all
sides agreed, due process requires that one fact may be presumed from evidence of another
only if there is a sufficient basis for the presumption. Judge Newman thought the standard
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permissible from flight or lying.2" In addition, the majority's determination to address only the general issue of the effect of sustainable
findings and to leave the panel opinion in place without applying the
new analysis to the facts provoked a fascinating, heated exchange with
Judge Newman 6 (with comment from Judge Calabresi27 ) about the
proper relationship of an en banc court to the panel.
While Fisher invites analysis on standard partisan grounds-liberal
versus conservative, pro-employee versus pro-employer-this article
arranges the arguments along a different axis. We propose a single key
to explain Fisher's doctrinal debates: a change in the judicial understanding of the nature of discrimination between McDonnell Douglas
and Fisher. We argue that each of the debates in Fisher reflects a tension between the original model of discrimination that the McDonnell
Douglas Court took for granted and a new model that has come to modify or replace the original. McDonnell Douglas was decided when the
Civil Rights Act of 196428 was still relatively new.29 It reflected what
we call the original model of employment discrimination. In the original model, the typical case of employment discrimination involved an
African-American plaintiff who claimed to have been excluded from a
relatively low-level job because of the animus-based racism the Civil
Rights Act of 1964 sought to overcome. The Fisher court had a different kind of case before it and viewed it through the lens of a new model.
This new model involves a profusion of categories of discrimination: all
was that inference of the presumed fact from the proven fact must be reasonable. Judge
Calabresi, joined by the majority on this point, argued that the cases established a dual standard: A mild correlation between the proven and the presumed fact permits a temporary presumption sufficient to force an explanation from the other side, but once an explanation has
been provided, there must be a stronger inferential connection to allow the presumption to
influence the verdict. In short, the judges' conflicting readings of these old cases mirrored
the differences between their readings of McDonnell Douglas and Burdine.
25. Compare Fisher, 114 F.3d at 1345-46, with id. at 1369-74, 1384-85 (Newman,
C.J., dissenting), and id. at 1390 (Winter, J., dissenting). We discuss these issues in Part
IV.E, infra.
26. Compare Fisher, 114 F.3d at 1347 & n.l1,
with id. at 1375-81 (Newman, C.J., dissenting).
27. See id. at 1360 (Calabresi, J., concurring in part and dissenting in part).
28. 42 U.S.C. §§ 2000e to 2000e-17 (1994).
29. McDonnell Douglas's justification for its refusal to rehire plaintiff Green was his
participation in disruptive civil rights demonstrations on company property, one of which
took place on July 2, 1965, the day Title VII became effective. (Percy Green and Cynthia
Fisher both earned their places in legal history the hard way. Green's appeal, after losing on
remand from the Supreme Court, was rejected by the Eighth Circuit in 1976; Fisher filed her
claim in 1985 and was denied certiorari in 1998. Except for a nine-year interval, then,
Fisherand McDonnell Douglas span the entire 33-year life of Title VII.)
1998]
FISHER v. VASSAR COLLEGE
races and nationalities; both sexes; statuses such as age and disability
that are protected by new statutes; subcategories such as married
women; and combined claims, such as discrimination based on both age
and sex. Related to this change are two others. The new model contemplates claims relating to jobs at high levels as well as low, and discrimination that may have sprung from stereotyping as well as simple
animus.
This article makes both descriptive and prescriptive claims. Descriptively, the conflict of models illuminates each of the three central
debates in Fisher about the meaning of the McDonnell Douglas structure. The first debate, which we discuss in Part III, is about the significance of a prima facie case. The majority in Fisherthought proof of a
prima facie case has virtually no probative value, while the minority
thought it permits an inference of discrimination unless it is rebutted by
a persuasive explanation from the employer. We think the majority's
understanding is the product of a shift to the new model. While the
original model made it reasonable to infer discrimination from the four
facts McDonnell Douglas identified as the components of a prima facie
case, such an inference seemed utterly implausible to the Fisher majority in a new model case.
The second debate, which we discuss in Part IV, concerned the
nature and role of pretext: The majority and minority divided over
whether a pretext finding alone constitutes substantial evidence of discrimination. They shared the view, however, that a pretext is necessarily a lie. We believe this view is too narrow because it is tied to a conception of the nature of discrimination that fits the old but not the new
model. In new model cases, discrimination may originate in stereotype
rather than (or in addition to) animus. In such cases, a defendant may
proffer a false explanation-a "pretext"-that reflects a biased judgment but is not a lie. This observation-recognized by neither the majority nor the dissenters-makes possible a more developed view of the
significance of a pretext finding.
Finally, in Part V we address the Second Circuit's analysis of the
combined effect of a prima facie case and a pretext finding. Here we
are explicitly prescriptive. Fisher went beyond Hicks in two related
ways, both driven by the majority's view that discrimination is not
prominent among the reasons that may lead employers to give false explanations of their conduct. Departing from Hicks, Fisher gave substantial weight to the possibility that employers' actions were based on
nondiscriminatory motivations that do not even appear in the record;
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and it accorded decisive importance to the weight of the non-pretext
evidence of discrimination. By doing so, Fisher effectively jettisoned
what remains of value in the McDonnell Douglas structure: the possibility of proving discrimination indirectly, by the process of elimination
of nondiscriminatory alternative explanations for a defendant's conduct.
Before turning to these three central debates, we describe the facts
and proceedings in Fisher,an exemplar of the new model case.
II. THE FACTS AND PROCEEDINGS IN FISHER
Cynthia Fisher was born in 1932. 30 In 1963 she received her Ph.D.
in zoology and then worked as a postdoctoral fellow.3' She then spent
nine years at home raising her children. 2 After she taught part-time for
two years at Marist College, Vassar hired her in 1977 as a visiting professor33 and in 1980 appointed her to a tenure-track position.' When
she came up for tenure in 1985, Vassar's Biology Department recommended against tenure on the grounds that her scholarship, teaching
ability, service and leadership-the announced criteria for tenure-were
all insufficient to justify tenure.35 In support of its recommendation, the
department produced a long report analyzing Fisher's performance and
finding her wanting in each of the relevant areas.36 The college accepted
the department's recommendation, and Fisher sued.37 Presaging, and
inviting, her difficulties in the court of appeals, she shifted the grounds
of her claim over the course of the lawsuit, first complaining that Vassar
had discriminated against her on the basis of her sex, then adding a
claim of discrimination based on her status as a married woman, and
then, at the close of her case at trial, adding a claim of discrimination on
the basis of age at the suggestion of the trial court.38
Because Fisher's claim arose prior to passage of the Civil Rights
Act of 1991, it was tried to the court. 3 9 The district judge, Judge Motley,
30.
1332 (2d
31.
32.
See Fisher v. Vassar College, 70 F.3d 1420, 1428 (2d Cir. 1995), aff'd, 114 F.3d
Cir. 1997) (en banc), and cert. denied, 118 S. Ct. 851 (1998).
See Fisher, 114F.3dat 1334.
See id.
33.
34.
See id.
See id.
35.
36.
See Fisher, 114F.3dat 1334.
See id.
37.
38.
See id.
See id.
39. The provision of the Civil Rights Act of 1991 that permits jury trials in employment discrimination cases, see 42 U.S.C. § 1981a(c) (1994), is not retroactive. See Landgraf
FISHER v. VASSAR COLLEGE
1998]
found that Fisher had proven the four components of a prima facie case
of intentional employment discrimination identified in McDonnell
Douglas: (1) she was a member of two protected classes (or three, depending on how you count), since she was both a (married) woman and
over forty; (2) she was, Judge Motley found, qualified for tenure; (3)
she was rejected; and (4) after she was rejected, Vassar continued to
look for candidates to fill the tenured position she had sought. Judge
Motley rejected as pretextual Vassar's claim that its decision was based
on its announced criteria for tenure. She found that Vassar's claims
about Fisher's teaching and scholarship were untrue and made "in bad
faith.
40
Based on that finding of pretext, as well as other statistical and
anecdotal evidence of discrimination, Judge Motley found that Vassar
had discriminated against Dr. Fisher based on both her status as a married woman and her age.' She rejected Fisher's claim of "simple" sex
discrimination because at the same time Fisher was denied tenure, two
other candidates were considered: Unhelpfully for Fisher's case, a
woman was granted tenure while a man was rejected. 2 Judge Motley
awarded Fisher back pay, doubled for willful age discrimination, and
ordered Vassar to reinstate her for two years and reevaluate her for tenure. 43
On appeal, a panel of the Second Circuit reversed. 44 In a thirty-four
page opinion for a panel consisting of himself, Judge McLaughlin, and a
visiting district judge, Judge Frank Kaufman of the District of Maryland, Judge Jacobs noted that the defendant had not questioned the sufficiency of Fisher's prima facie case either at trial or on appeal.4 5 Accordingly, the panel did not address either the requisite components of a
prima facie case in the context of Fisher's claims or Judge Motley's
findings supporting her ultimate finding that Fisher had proven her
prima facie case." In particular, the panel did not discuss what Fisher
v. USI Film Prods., 511 U.S. 244, 286 (1994).
40. See Fisher v. Vassar College, 852 F. Supp. 1193, 1201 (S.D.N.Y. 1994), rev'd, 70
F.3d 1420 (2d Cir. 1995), aft'd, 114 F.3d 1332 (2d Cir. 1997) (en banc), and cert. denied,
118 S. Ct. 851 (1998).
41. See id. at 1227-29. In addition to pretext evidence, Judge Motley pointed to statistics purporting to show that Vassar had not granted tenure to a married woman in the hard
sciences for thirty years or more and to comments other faculty members made to Dr. Fisher.
See id. at 1228.
42. Id. at 1224-25.
43. See Fisher, 852 F. Supp. at 1234-35.
44. See Fisher, 70 F.3d at 1454.
45. See id. at 1434.
46. Judge Jacobs paused, however, to question whether family status was a manage-
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had to demonstrate in order to prove her qualification for tenure.47
Vassar defended its decision on the basis of the biology department's detailed tenure recommendation report and the deficiencies it
identified. 48 The panel evaluated the evidence of pretext and sustained
Judge Motley's conclusion that the evaluation was "pretextual and [in]
bad faith, 4 9 notably in the evaluation of Fisher's scholarship and her
teaching. With regard to scholarship, the panel noted Judge Motley's
findings that although Vassar's evaluation questioned Fisher's activities
during her sabbatical year just before coming up for tenure, she had, in
fact, been very productive. 0 With regard to teaching, the panel sustained-or at least did not question-Judge Motley's findings that the
biology department had distorted Fisher's teaching recommendations
and subjected her to a harsher standard than that applied to males and
the unmarried woman who received tenure while Fisher was rejected.51
Setting the stage for the en banc conflict, the panel then held that
even though there was a prima facie case and a sustainable pretext
finding, the evidence as a whole was insufficient to support Judge Motley's ultimate finding of discrimination.52 In context, the panel said
pungently and, it turned out, provocatively, the pretext finding "points
nowhere."53 By this phrase it meant that this was not a case where
"discriminatory intent is the only probable reason for the employer's
proffer of a pretextual reason to the court."' The panel did not suggest
what "third motive," as it has come to be called, might have led the
college to offer a pretextual explanation even if it had not discriminated.
It simply gave the pretext finding no affirmative weight as proof of discrimination. The panel then concluded that the district court's other
findings of fact did not support an ultimate finding of discrimination,
able factor to be the "plus" in sex-plus discrimination claims, since the trial evidence had at
points devolved into "splintered" categories such as "divorced, engaged, seriously involved,
never married, etc.," each of which might conceivably form a category of persons allegedly
subjected to discrimination. Id. at 1434.
47. Though natural in view of Vassar's concession, this omission had a remarkable
later effect. Since the en banc majority decided not to apply its analysis to the facts in
Fisher, simply leaving the panel decision standing, the majority's entire discussion of the
legal significance of a prima facie case was conducted without any reference to actual facts.
48. See id. at 1428.
49. Fisher,70 F.3d at 1434 (quoting Fisher,852 F. Supp. at 1218).
50. See id. at 1435.
51. See id. at 1435-36.
52. See id. at 1448.
53. Fisher,70 F.3d at 1437.
54.
Id.
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FISHER v. VASSAR COLLEGE
and reversed.55
The Second Circuit granted en banc review. The en banc majority
asked whether, as a general matter, a reviewing court may hold an ultimate finding of discrimination clearly erroneous after sustaining findings of a prima facie case and pretext.5 6 Answering yes, the majority
concluded that since the panel had applied the correct legal standard, it
was unnecessary to review the panel's application of that standard to the
facts of the case, and it thus affirmed based on the panel opinion.7
In his concurrence, Judge Jacobs took on the district court's findings of fact and Judge Newman's defense of those findings:58 For example, he undertook a detailed re-analysis of the record to show that Vassar was right (and Judge Motley wrong) about student evaluations of
Fisher's teaching.5 9 Judge Newman argued that the majority had deprecated the force both of a prima facie case and of a pretext finding: General rules and constitutional limitations governing presumptions, the
holdings and language of McDonnell Douglas and its progeny, and
widely applicable principles concerning inferences to be drawn from
lies, concealment, and flight, all required affirmance of the district
court.60 He also protested the majority's decision (which he called a
"default of adjudication" 61) to leave the merits to the panel opinion 62 and
defended Judge Motley's findings of discrimination, arguing that the
panel had misconstrued the role of a reviewing court.63 Judge Winter
added a dissent premised on the argument that the McDonnell Douglas
structure should be interpreted in a manner consistent with generally
applicable principles from the law of evidence. Applying this premise,
55.
56.
57.
58.
59.
60.
See id. at 1448, 1453.
See Fisher, 114 F.3d at 1333.
See id.at 1347.
See id. at 1351-53 (Jacobs, J., concurring).
See id.
See Fisher, 114 F.3d at 1361-86 (Newman, C.J., dissenting).
61. Id. at 1379.
62. The majority reasoned that since its analysis of "the force and effect of a pretext
finding, taken together with a prima facie case" was consistent with the panel's analysis, it
could simply rely on the panel's opinion. Fisher, 114 F.3d at 1347. Apparently no en banc
court had ever done that before; at least none of the opinions in Fisher could point to any
discussion of the issue. Judge Newman protested that this aspect of the decision was unfair
to the judges who had taken the time to study the record and unhelpful to district judges who
would have to apply the new legal standards. See id. at 1380 (Newman, C.J., dissenting).
63. See id. at 1379. "A reviewing court," he said, "may legitimately reject an inference of discrimination, not because of its views about employer behavior in general or university behavior in particular, but only where a record provides an articulable basis for exercising the narrowly circumscribed appellate function of determining that a finding of fact is
clearly erroneous." Id. at 1377.
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he concluded that the meaning of the term "prima facie case," the law of
presumptions (codified in Federal Rule of Evidence 301), and the "vast
body of law allowing inferences of consciousness of guilt to be drawn
from dishonest behavior concerning facts material to litigation," all required affirmance whenever the plaintiff has made out a prima facie
case and there is a sustainable finding of pretext. 64
Finally, Judge Calabresi concurred with the majority's conclusions
about the applicable legal principles (though with a different analysis),
but thought the majority should have applied its legal holdings to the
facts, rather than deferring to the panel's determination.6 5 Making a
point we will return to below, he saw all pretext findings as permitting
an inference of discrimination but thought the strength of the inference
depended on the nature of the pretext; he argued that a pretext that reflects a stereotype justifies a stronger inference of discrimination than
one that does not.66
III. THE PRIMA FACIE CASE: THE COURT CAUGHT
IN THE CONFLICT OF MODELS
The en banc majority's central premise was that a McDonnell
Douglas prima facie case does not necessarily constitute substantial,
much less legally sufficient, evidence of discrimination. If this is so,
the majority reasoned, then it is a short step to say that a prima facie
case plus evidence of pretext may also be insufficient. 67 In this part we
consider the source of that premise. How can insubstantial evidence be
sufficient to establish a prima facie case? The Fishermajority's answer
was that a McDonnell Douglas prima facie case is a device adopted by
the Supreme Court in discrimination cases to address the problem of the
"silent defendant., 68 In order, the majority said, to "smoke out" 69 from
the employer an explanation of its action, the Supreme Court in
McDonnell Douglas adopted the rule that absent the proffer of such an
explanation the plaintiff is entitled to win automatically. Because the
64. Fisher, 114 F.3d at 1390 (Winter, J., dissenting).
65. See id. at 1354 (Calabresi, J., concurring in part and dissenting in part). Judge
Calabresi thought the majority should have addressed the factual issues not because it was
obligated to, as Judge Newman would have it, but as a way to clarify and perhaps narrow the
disputes within the en banc court. See id. at 1360.
66. See id. at 1358-59.
67. See Fisher, 114 F.3d at 1338-39.
68. Id. at 1389 (Winter, J., dissenting) (describing majority position); Fisher, 114 F.3d
at 1335.
69. Id. at 1344.
FISHER v. VASSAR COLLEGE
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prima facie case has this special and limited purpose, the majority continued, it is not surprising that evidence that satisfies the prima facie
case requirement may not be significantly probative of discrimination. °
While ordinarily a prima facie case means evidence "from which a factfinder could reasonably find every element that the plaintiff must ultimately prove to prevail in the action,"7 ' the McDonnell Douglas prima
facie case does not, precisely because it is a "special policy-based
rule. 7 2
By the time of Fisher,this understanding of the role of a prima facie case had a strong credential-supporting language in Hicks." But it
is revisionist, neither shared by the McDonnell Douglas Court nor reflected in subsequent Supreme Court decisions before Hicks. Those
cases understood the purpose of the prima facie case to be the creation
of an orderly structure of proof, in which the prima facie case would be
substantial evidence of discrimination, absent a credible alternative explanation from the employer. We will explain why we think the majority's reading of McDonnell Douglas is analytically and historically
problematic. We will then suggest a reason the majority saw its reading
as not just correct, but uncontroversial: The McDonnell Douglas Court's
view of employment discrimination was so remote from the Fisher
majority's experience as to be unrecognizable.
A. The Analytical Problem
The immediate problem with the smoke-out rationale for the prima
facie case is that it is unnecessary. As Judge Winter pointed out in his
dissent, the "problem" of the silent defendant is not a problem at all,
much less one significant enough to be the fulcrum of the law of employment discrimination.74 Whatever variability there may be in judicial
management of pretrial discovery under the Federal Rules, it is hard to
imagine a court allowing an employer to conceal its purported reasons
70.
See id. at 1336-37.
71.
Id. at 1336.
72. Fisher,114 F.3d at 1336.
73. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993). Referring to the role of the
prima facie case at the third stage of the McDonnell Douglas sequence, the Court said, "The
presumption, having fulfilled its role of forcing the defendant to come forward with some
response, simply drops out of the picture." Id. at 510-11 (citing Texas Dep't of Community
Affairs v. Burdine, 450 U.S. 248, 255 (1981)).
74. See Fisher, 114 F.3d at 1389 (Winter, J., dissenting). Judge Leval joined Judge
Winter on this point. See id. at 1389 n.4.
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for making the allegedly discriminatory decision." Among other approaches, the plaintiff could subpoena the relevant decisionmaker to a
deposition or trial and simply pop the question, why did you do it? Any
silent defendant problem is a problem only for the defendant who
knows he has discriminated but does not wish to admit it. Such a defendant, an unlikely subject for judicial concern, must choose between
the consequences of silence and the risks of perjury. The defendant's
cannot-here or in any civil context-by itself defeat the plainsilence
6
7
tiff.
The Supreme Court has never identified the silent defendant as a
problem (unless we count the reference in Hicks 7). The real special
problem in proving intentional employment discrimination, repeatedly
identified by the Supreme Court, is a different one: the problem of
proving intent where admissions are unlikely.78 This problem, the unlikelihood of direct evidence of a defendant's guilty state of mind, is
simply not addressed at all by a proof sequence that treats the prima facie case as having no weight in proving discrimination. One way to address the problem of the lack of direct evidence is to formulate rules
about when certain kinds of circumstantial evidence are sufficient to
establish a case. McDonnell Douglas established just such a rule.79
B. The HistoricalProblem
The McDonnell Douglas Court did not think the purpose of the
proof structure it created was to smoke out a silent defendant's explana-
75. See id. at 1389.
76. Justice Scalia made just this point in Hicks, in support of the argument that it is not
unusual that a party may be better off lying than remaining silent. See Hicks, 509 U.S. at
521-22. (Justice Scalia failed to note, however, that in Hicks-and Fisher-unlikethe examples he cited, the defendant may remain better off for having lied even after his lie is discovered by the factfinder.)
77. Hicks's language, quoted supra at note 73, may refer primarily, or only, to the
"means of arranging the presentation of evidence." Id. at 510 n.3 (quoting Watson v. Fort
Worth Bank & Trust, 487 U.S. 977, 986 (1988)) (internal quotation marks omitted).
78. See id. at 524; United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S.
711, 716 (1983); Burdine, 450 U.S. at 252.
79. See, e.g., Board of Educ. v. Harris, 444 U.S. 130, 162 n.10 (1979) (Stewart, J., dissenting) ("Because direct proof of an illicit motive is often unavailable, the cases under §
703(a)(1) have established a procedural mechanism under which an employer, once an employee has adduced sufficient evidence to give rise to an inference of discriminatory motive,
must bear the burden of establishing that he acted for a legitimate, non-discriminatory reason. ... This procedural mechanism is simply designed to provide a means of inferring an
employer's motive in the absence of direct evidence.") (internal quotation marks omitted).
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FISHER v. VASSAR COLLEGE
tion for its conduct. The factual claims of the parties in McDonnell
Douglas itself were perfectly clear, and the parties themselves were
anything but silent. The plaintiff claimed that the true reason he was
not hired was racial discrimination and retaliation for civil rights activities.80 The defendant had declared, indeed proclaimed, its nondiscriminatory justification for not hiring the plaintiff: Plaintiff Green had
parked his car in the middle of the access road to the defendant's plant
as part of a civil-rights "stall-in" and then later participated in a "lockin" during which the doors to the plant were chained shut.8' In the Supreme Court's view, "the issue at the trial on remand is framed by those
opposing factual contentions. 8 2 The problem the Supreme Court was
addressing was how to create an "order and allocation of proof' 83 in Title VII cases, a problem the court below had addressed with what Justice Powell described as "a notable lack of harmony. ' ' 4 The purpose of
the proof structure was to get at the truth: to identify and remedy discrimination where it existed without denying legitimate employer prerogatives. Problems of discovery-making a silent defendant speakwere not mentioned and may very well never have occurred to the
Court.
The Court returned to the McDonnell Douglas structure in Furnco
Construction Corp. v. Waters.85 Again, smoking out a silent defendant
played no part in the case below. One of Fumco's claims from the outset was that it hired white instead of African-American bricklayers because a foreman had provided references for the whites, declaring them
the best qualified.8 6 As in McDonnell Douglas, the Furnco Court's understanding of the basis for the presumption of discrimination had
nothing to do with the need to smoke out defendants' explanations.
Such a presumption was fair, the Court explained, because "when all legitimate reasons for rejecting an applicant have been eliminated as possible reasons for the employer's actions, it is more likely than not the
employer, who we generally assume acts only with some reason, based
his decision on an impermissible consideration such as race.",87 Accordingly, the McDonnell Douglas structure was not a special policy-
80.
81.
82.
83.
84.
85.
86.
87.
See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 794-96 (1973).
Id. at 795.
Id. at 801.
Id. at 800.
McDonnell Douglas, 411 U.S. at 801.
438 U.S. 567 (1978).
See id. at 569-70.
Id. (emphasis omitted).
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based rule, but "merely a sensible, orderly way to evaluate the evidence
in light of common experience as it bears on the critical question of discrimination.""
Three years later, in Burdine, the Court again said nothing about
needing to prevent the plaintiff from being thwarted by the defendant's
silence, and again the defendant was anything but silent. Joyce Burdine,
the defendant explained, had simply not worked effectively with two
co-workers, and all three were fired.8 9
The Burdine Court accepted and refined the original rationale for
the McDonnell Douglas structure. "The prima facie case," Justice Powell wrote for the Court, "serves an important function in the litigation: it
eliminates the most common nondiscriminatory reasons for the plaintiff's rejection." 90 Considered as a whole, McDonnell Douglas's threepart "order and allocation of proof," Justice Powell wrote, was
"intended progressively to sharpen the inquiry into the elusive factual
question of intentional discrimination." 9
It was only in 1993, in Hicks, that the Supreme Court first used the
language of the smoke-out rationale. But even Hicks did not express the
Fisher majority's assumption that McDonnell Douglas fixed the requirements of a prima facie case artificially, not to say arbitrarily, for
the sole purpose of requiring an otherwise silent employer to speak.92
Against the background of this history, it is striking that the Fisher
majority argued that the purpose of the McDonnell Douglas framework
is "to prevent employers from simply remaining silent while the plaintiff founders on the difficulty of proving discriminatory intent."93 It is
even more striking and, we think, revealing, that the majority assumed
that its understanding of that purpose was uncontroversial. As authority
for the statement just quoted, it offered only an unexplained citation to
portions of Burdine which, like the rest of Burdine, do not refer to the
smoke-out rationale. 94 When the majority, later in its opinion, cited the
88.
Id.
89. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 251 (1981).
Signaling the beginning of a transition, the plaintiff in Burdine was a managerial level employee and claimed sex, not race, discrimination.
90. Id. at 253-54.
91. Id. at 254 n.8.
92. Apart from the one clause quoted earlier, Hicks offered no functional analysis of
the McDonnell Douglas structure. It arrived at its holding by reasoning that requiring judgment for the plaintiff upon proof of pretext would improperly shift the burden of proof to the
defendant. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993).
93. Fisher, 114 F.3d at 1335.
94. See id. (citing Burdine, 450 U.S. at 254-56 & n.8). It is also remarkable that the
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FISHER v. VASSAR COLLEGE
passage from Hicks quoted above that articulated the smoke-out rationale, it mistakenly attributed the original source of the passage to Burdine, a case that preceded Hicks and the smoke-out rationale by a dozen
years. 95 The slip, though small, reinforces the sense that the majority
took the smoke-out rationale for granted.
We note a related point. The opinions in Fisher have a lot to say
about presumptions and their significance, all in the service of arguing
competing understandings of the rule that discrimination is "presumed"
from a McDonnell Douglas prima facie case. Does the fact that discrimination is legally "presumed" mean that there is evidence from
which it may also reasonably be inferred, or does it mean the opposite:
Discrimination is inferred only because of a special transient, policybased presumption that says little about the actual likelihood of discrimination? In support of its argument that a "presumption" of discrimination is far less weighty than an inference that discrimination is
actually likely, the majority cited Burdine: "Justice Powell explains that
'the prima facie case raises an inference of discrimination only because
we presume these acts, if otherwise unexplained, are more likely than
not based on the consideration of impermissible factors." 96 But as the
majority noted, Burdine was simply quoting Furnco here, and Justice
Rehnquist's opinion in Furnco, which introduced the term "presume" to
the McDonnell Douglas analysis, explained that the basis for the presumption of discrimination is not policy but "common experience ' 97 and
logic: "[W]hen all legitimate reasons for rejecting an applicant have
been eliminated as possible reasons for the employer's actions, it is
more likely than not the employer, who we generally assume acts only
with some reason, based his decision on an impermissible consideration
such as race." 98 At its source, then, the Supreme Court's creation of a
dissenting opinions did not explicitly challenge the majority's understanding of the purpose
of the McDonnell Douglas structure. In fact, Judge Winter (joined by Judge Leval on this
point), accepting the premise that the purpose of the McDonnell Douglas structure is to
smoke out a defendant's explanation, suggested that the structure be abandoned precisely
because it is not needed for that purpose. See id. at 1389 (Winter, J., dissenting).
95. See Fisher, 114 F.3d at 1343. The error is in the placement of internal quotation
marks.
96. Id. at 1341 (quoting Burdine, 450 U.S. at 254 (emphasis omitted) (quoting Furnco
Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978) (internal quotation marks omitted))).
97. Furnco,438 U.S. at 577.
98. Id. (emphasis omitted). The quoted passage cites only one source, International
Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977), which speaks in terms not
of presumptions, but of inferences:
Although the McDonnell Douglas formula does not require direct proof of discrimination, it does demand that the alleged discriminatee demonstrate at least that
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presumption of discrimination upon proof of a McDonnell Douglas
prima facie case-on which the Second Circuit in Fisher expended so
much intellectual firepower-was explicitly based on what the Supreme
Court took to be the likelihood of discrimination, rather than on special
policy considerations.
C. Changing Times: Why FisherRe-Interpreted the ProofStructure
We think the principal reason the majority saw little or no connection between the elements of a prima facie case and proof of discrimination, and instead assumed that the purpose of the McDonnell Douglas
rule was to smoke out the employer's justification, is that the court in
1997 had a much more complex, and jaded, view of discrimination
cases than did the McDonnell Douglas or Furnco Courts, a new model
that had replaced the original.99
The McDonnell Douglas proof structure was created against a
backdrop, in 1973, that now seems very far away. The Court understood a critical issue before it to be the design of a structure of proof
that would end racial segregation in the workplace-in the Court's
words, achieve Title VII's purpose of "eliminat[ing] those discriminatory practices and devices which have fostered racially stratified job environments to the disadvantage of minority citizens. '° This understanding of the purpose behind the design of a structure of proof
included the three core elements of the original model of discrimination.
First, the object of discrimination was an African-American
worker, a member of a group subjected to long-standing, systematic,
morally reprehensible discrimination. Title VII, the crown jewel of the
Civil Rights Act of 1964, was aimed first and foremost at ending
America's legacy of race discrimination.0 1 McDonnell Douglas in-
his rejection did not result from the two most common legitimate reasons on
which an employer might rely to reject a job applicant: an absolute or relative lack
of qualifications or the absence of a vacancy in the job sought. Elimination of
these reasons for the refusal to hire is sufficient, absent other explanation, to create an inference that the decision was a discriminatory one.
Id. at 358 n.44.
99. In both Burdine and subsequently in United States PostalService Board of Governors v. Aikens, 460 U.S. 711 (1983), the Supreme Court encountered but avoided difficulties
that new model cases create for the McDonnell Douglas structure. See infra text accompanying notes 125-33.
100. McDonnell Douglas, 411 U.S. at 800.
101. On Good Friday 1963, Sheriff Bull Connor sicced police dogs on civil rights demonstrators in Birmingham. A week later, Governor George Wallace of Alabama announced
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FISHER v. VASSAR COLLEGE
volved an African-American worker, and there is no reason to think the
Court imagined the complexities introduced by the expansion and subclassification of protected categories brought by later cases.'0 2
Second, related to the focus on race discrimination, McDonnell
Douglas addressed an employment setting historically driven by
exclusionary animus. While the Civil Rights Act,' 3 and the first
generation of Supreme Court decisions interpreting it, extended
'
protection to discrimination "subtle or otherwise,"'O
the core conduct
they sought to eliminate was the frank and complete exclusion or
segregation of African-American workers that pervaded large segments
of the workforce, the "racially stratified job environments" referred to in
the Court's opinion.l 5
Third, and equally important in understanding the current doctrinal
struggles, the first generation of Title VII cases, including McDonnell
he would defy a federal court order to admit African-American students to the University of
Alabama. In a televised address to the nation on June 11, President Kennedy declared, "We
are confronted primarily with a moral issue. It is as old as the Scriptures and it is as clear as
the American Constitution." RICHARD KLUGER, SIMPLE JUSTICE 756 (1976). He then continued:
One hundred years have passed since President Lincoln freed the slaves, yet their
heirs, their grandsons, are not fully free. They are not yet freed from the bonds of
injustice. They are not yet freed from social and economic oppression. And this
nation, for all its hopes and all its boasts, will not be fully free until all its citizens
are free.
Id. A week later, he submitted to Congress the bill that would become the Civil Rights Act
of 1964. See id. at 756-57. As the plurality opinion in Price Waterhouse v. Hopkins, 490
U.S. 228 (1989), noted, much of the debate in the legislative history of Title VII proceeded
as if race were the only subject of the Act; sex was, famously, added as a forbidden criterion
for employment in an attempt to defeat the bill. See id. at 243-44 & n.9.
102. Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971) (per curiam), the first "sexplus" case in the Supreme Court, actually preceded McDonnell Douglas. But Phillips involved an announced policy of sex-plus discrimination-refusal to hire women with young
children-and the Court's two-paragraph per curiam opinion is far from reflecting consideration of the implications of mixed categories. In fact, the Court suggested, with only Justice Marshall objecting, that "conflicting family obligations" might make not being a mother
of young children a bona fide occupational qualification for full-time employment. Id. at
544-47 (Marshall, J., concurring).
103. 42 U.S.C. §§ 2000e to 2000e-17 (1994).
104. McDonnell Douglas, 411 U.S. at 801.
105. Id. In Teamsters, the Supreme Court, holding that it was futile for a defendant to
attempt to explain away its complete exclusion of African-American employees from certain
job categories, referred memorably to the probative force of "the inexorable zero." International Bhd. of Teamsters v. United States, 431 U.S 324, 342 n.23 (1977) (quoting United
States v. T.I.M.E.-D.C., Inc., 517 F.2d 299, 315 (5th Cir. 1975), cert. granted sub nom. International Bhd. of Teamsters v. United States, 425 U.S. 990 (1976), and vacated, 431 U.S.
324 (1977)).
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Douglas, concerned employees in lower level, frequently entry-level,
jobs. ' 6 In such cases, job applicants with the requisite qualifications
were seen as more or less fungible. A union truck driver, for example,
was presumably capable of driving any route, so evidence that AfricanAmerican drivers routinely received less desirable routes was considered probative of discrimination. 107 For lower level employees, the definition of "qualification" was relatively straight-forward. Although there
was and is considerable room for argument about measurement of qualifications for lower level positions (in fact, precisely that argument is the
focus of most disparate impact cases" 8), for most lower level jobs there
106. Before McDonnell Douglas, the Court considered five Title VII cases, all, like
McDonnell Douglas itself, involving lower level employees. See Espinoza v. Farah Mfg.
Co., 414 U.S. 86 (1973) (seamstress); Love v. Pullman Co., 404 U.S. 522 (1972) (porter);
Griggs v. Duke Power Co., 401 U.S. 424 (1971) (laborers); Phillips v. Martin Marietta Corp.,
400 U.S. 542 (1971) (per curiam) (assembler); Crosslin v. Mountain States Tel. & Tel. Co.,
400 U.S. 1004 (1971) (telephone worker).
After McDonnell Douglas, the Court decided a series of important cases also involving lower level employees, including Teamsters; Franks v. Bowman TransportationCo.,
424 U.S. 747 (1976); and Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975). While it
considered facial discrimination involving employees at all levels in City of Los Angeles Department of Water & Power v. Manhart, 435 U.S. 702 (1978), and General Electric Co. v.
Gilbert, 429 U.S. 125 (1976), the first case where it encountered a claim of covert discrimination against an employee in a mid- or upper level job was Burdine. (We except the twoparagraph per curiam in Board of Trustees of Keene State College v. Sweeney, 439 U.S. 24
(1978) (per curiam), a case, like Fisher,involving a college teacher's claim that she was not
promoted because of sex discrimination. Sweeney attracted four dissenters, who said the
Court had gone out of its way to reverse. At least one commentator has connected the proemployer ruling in Sweeney to the fact that it involved a high-level job. See Elizabeth Bartholet, Application of Title VII to Jobs in High Places, 95 HARV. L. REV. 945, 949-50 & n.7
(1982). Writing closer to the period, Bartholet reported that "[a]ggressive efforts to combat
discrimination did not begin until the passage of title VII of the Civil Rights Act of 1964,
and early efforts were aimed at lower level jobs, which represented the great bulk of employment opportunities." Id. at 949. Moreover, she pointed out, Title VII did not cover academic institutions and public employment until 1972. See id.)
107. See International Bhd. of Teamsters v. United States, 431 U.S 324 (1977).
108. In 1982, Bartholet argued for extension of the disparate impact doctrine to higher
level positions. See Bartholet, supra note 106, at 955-59. As a practical matter, that has not
happened, despite the Supreme Court's subsequent approval of the application of disparate
impact analysis to subjective employment practices in Watson v. Fort Worth Bank & Trust,
487 U.S. 977 (1988). Reasons, identified by a recent commentator, may include the small
number of employees typically available for comparison, absence of facially neutral criteria,
judicial sympathy for subjective decision-making where high-level positions are involved,
and the continuing influence of the lenient standard for business necessity announced in
Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989). See Tracy Anbinder Baron, Comment, Keeping Women Out of the Executive Suite: The Courts' Failure to Apply Title VII
Scrutiny to Upper-Level Jobs, 143 U. PA. L. REV. 267, 290-91 (1994).
Judge Motley noted that Fisher might have mounted a disparate impact challenge to
Vassar's alleged discrimination on the basis of her parental leave. See Fisher v. Vassar Col-
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FISHER v. VASSAR COLLEGE
was a pool of concededly similarly qualified workers.
Thus, Furnco was brought by three African-American bricklayers
who had not been hired despite being indisputably qualified for openings; soon after rejecting the African-Americans, the construction company hired three white bricklayers.' °9 McDonnell Douglas likewise was
a factually simple case. The Supreme Court had no doubt that the reason the plaintiff was not rehired as a mechanic was either the reason
proffered by the employer or unlawful discrimination. It was no stretch
for Justice Powell, a son of the South, to infer that absent adequate explanation an employer's failure to hire a qualified African-American
applicant was more likely than not the result of racial animus.
Things have looked very different to courts hearing employment
discrimination cases in the 1990s. New statutes, doctrinal evolution and
the ineluctable tendency of plaintiffs to press for expansion of the
boundaries of available claims have led to the proliferation of both categories of discrimination alleged and sheer number of claims."0 Claim
lege, 852 F. Supp. 1193, 1226 n.15 (S.D.N.Y. 1994), rev'd, 70 F.3d 1420 (2d Cir. 1995),
aff'd, 114 F.3d 1332 (2d Cir. 1997) (en banc), and cert. denied, 118 S. Ct. 851 (1998); see
also Fisher, 114 F.3d at 1354 (Jacobs, J., concurring). Fisher probably did not have a viable
disparate impact challenge: There was considerable evidence that her hiatus worked against
her, and Judge Motley so found, Fisher, 852 F. Supp. at 1231 n.25, but there was little or no
evidence of other women, much less men, who had taken parental leave. The absence of
similarly situated men highlights a theoretical difficulty with applying disparate impact
analysis to facially neutral criteria that are historically linked to a protected characteristic. A
male-dominated profession might penalize people who take time off to raise a family so long
as those people are women. When and if substantial numbers of capable men take time off,
the profession may become more accommodating. Until then, there is no group of men
similarly situated, for purposes of statistical comparison, to the women who take time off.
Under these circumstances, disparate impact analysis is not available. Statistics should still
be able to be used, however, to support a claim of disparate treatment. Vassar argued that its
allegedly unfair treatment of people who took a hiatus from scientific work was irrelevant to
the sex discrimination claim because there was no evidence that any men had taken time off
and, therefore, no evidence that men who took time off were treated better than women who
did so. Judge Newman called this argument "fatuous." Fisher, 114 F.3d at 1383 (Newman,
C.J., dissenting).
109. See Furnco,438 U.S. at 569-70.
110. The number of new employment discrimination cases filed in the federal courts
grew from less than 350 in fiscal year 1970 to about 9000 in fiscal year 1983 before stabilizing. See John J. Donohue III & Peter Siegelman, The Changing Nature of Employment
DiscriminationLitigation, 43 STAN. L. REv. 983, 985 (1991). It has ballooned again since
passage of the Civil Rights Act of 1991. There were 8140 new filings in fiscal year 1990
and 23,707 in fiscal year 1996. See EQUAL EMPLOYMENT LAW UPDATE, FALL 1997 at vi
(Richard T. Seymour & Barbara Berish Brown eds., BNA Books 1998). Donohue and
Siegelman note other changes as well, most prominently the decline of class actions and the
growth of claims for wrongful termination instead of failure to hire. See Donohue &
Siegelman, supra, at 1015-17, 1019-21. An influential early commentator could say that
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proliferation includes both discrimination based on subclassification,
like Dr. Fisher's claim of discrimination against married women, and
new categories of protected classes resulting from statutes, like the Age
Discrimination in Employment Act of 1967 (ADEA)"' and the Americans With Disabilities Act (ADA)." 2 With this change in claims has
come a perceived shift in the basis of discrimination from animus to
stereotype. With regard to age discrimination, for instance, the Supreme Court has said that "[a]lthough age discrimination rarely was
based on the sort of animus motivating some other forms of discrimination, it was based in large part on stereotypes unsupported by objective
,."3Sex discrimination, including "sex-plus" discrimination,
fact.
has also been thought to stem at least for the most part from stereotyping."'4 Even in race discrimination cases, stereotyping has become relatively more prominent as naked animus has become less socially acceptable, if not less pervasive. Additionally, as minorities have had
some success in climbing the employment ladder, and as claimants have
come to include groups like older workers that have historically done
much better than African-Americans in reaching high positions, discrimination claims have come to include claims of exclusion from
higher as well as lower level positions." 5' Finally, with these changes,
the years since McDonnell Douglas have brought a dilution of the moral
momentum courts attributed to discrimination claims. Instead of a
moral battle to eradicate the legacy of chattel slavery, courts now tend
"[d]iscrimination in recruitment and hiring is the chief measurable evil against which the
modem law of employment discrimination is directed." Alfred Blumrosen, The Duty of Fair
Recruitment Under the Civil Rights Act of 1964, 22 RUTGERS L. REv. 465, 468 (1968). By
the time Donohue and Siegelman wrote, termination cases outnumbered hiring cases six to
one. See Donohue & Siegelman, supra, at 1015. We do not separately discuss these shifts,
but they are related to the emergence of the new model. Hiring cases, and class actions in
particular, were part of the first generation effort to use Title VII to integrate all-white workforces.
29 U.S.C. §§ 621-634 (1994).
111.
112. 42 U.S.C. §§ 12101-12213 (1994).
Hazen Paper Co. v. Biggins, 507 U.S. 604, 610-11 (1993) (quoting EEOC v.
113.
Wyoming, 460 U.S. 226, 231 (1983)) (internal quotation marks omitted).
114. The Supreme Court's Title VII sex discrimination cases involve stereotyping, either in the ordinary sense or in our broader sense that includes any group-based generalization. See, e.g., Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (plurality opinion);
County of Washington v. Gunther, 452 U.S. 161, 180 (1981); City of Los Angeles Dep't of
Water & Power v. Manhart, 435 U.S. 702, 707 n.13 (1978). Sexual harassment cases, while
not necessarily an exception, involve a somewhat different analysis.
115. Prospective plaintiffs claiming discrimination in high-level jobs also have readier
access to lawyers. Their cases have more monetary value than claims of lower level workers, and they are far more likely to have funds to pay as they go.
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FISHER v. VASSAR COLLEGE
to see employment discrimination law more as an exercise in the control
of outliers, defendants who are deviants from a national consensus,
anomalously enacting discredited prejudices. 16
This change in models set the terms of the Second Circuit's understanding of the McDonnell Douglas test. In the new world of proliferated claims, nearly anyone can prove a prima facie case of discrimination. Indeed, anyone can make out most of the elements of at least two
prima facie cases, since everyone can claim membership in both a race
and a sex. The Fisher majority knew that and thought it central. We
think the core of the majority opinion is a single sentence. "In our diverse workplace," the majority wrote, "virtually any decision in which
one employment applicant is chosen from a pool of qualified candidates
will support a slew of prima facie cases of discrimination.""' "The rejected candidates," the majority continued, as a matter of course "are
likely to be older, or to differ in race, religion, sex, and national origin
from the chosen candidate.""..8 Such a statement, obvious as it now is,
would have startled the McDonnell Douglas Court. Just as the original
rationale for the McDonnell Douglas prima facie case was remote from
the Fisher majority's experience of discrimination law, so the Fisher
majority's description of the actual application of the McDonnell
Douglas standard would have been unrecognizable to the McDonnell
116. Justices Thomas and Scalia have said as much in different but related contexts.
See, e.g., Holder v. Hall, 512 U.S. 874, 895 (1994) (Thomas, J., concurring) (suggesting a
narrowing of voting rights statute based in part on progress African-Americans have made);
Freeman v. Pitts, 503 U.S. 467, 506 (1993) (Scalia, J., concurring) ("At some time, we must
acknowledge that it has become absurd to assume, without any further proof, that violations
of the Constitution dating from the days when Lyndon Johnson was President... continue to
have an appreciable effect upon current operation of schools."). Some commentators have
decried this trend. Michael Selmi cites Justice Scalia's and Justice Thomas's comments and
rebuts them with evidence that discrimination continues to be prevalent. See Michael Selmi,
Proving Intentional Discrimination:The Reality of Supreme Court Rhetoric, 86 GEO. L.J.
279, 340 & n.280 (1997); see also Deborah A. Calloway, St. Mary's Honor Center v. Hicks:
Questioning the Basic Assumption, 26 CONN. L. REV. 997 (1994). Others have argued that
discrimination has indeed declined.
See, e.g., STEPHAN THERNSTROM & ABIGAIL
THERNSTROM, AMERICA IN BLACK AND WHITE: ONE NATION INDIVISIBLE (1997). Writing
before the Civil Rights Act of 1991, Donohue and Siegelman attributed much of the increase
in the number of discrimination cases to increased integration in the workplace. Their theory
is that racial and sexual integration paradoxically increases litigation by creating the possibility of real or perceived double standards. See Donohue & Siegelman, supra note 110, at
1012-32. Whether or not discrimination has declined, the explosion in the number of discrimination claims is very likely to make individual cases seem, to the judges hearing them,
both less important and less likely to be meritorious.
117. Fisher, 114 F.3d at 1337.
118. Id.
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Douglas Court, which saw discrimination cases through the lens of the
original model.
A second change, related to the first, is that, to be blunt, the Fisher
majority simply thought that unlawful discrimination was less likely to
be the explanation for an adverse employment action than the McDonnell Douglas Court did. There were, of course, many less than compelling cases at the time of McDonnell Douglas; in McDonnell Douglas itself, the plaintiff lost on remand." 9 But regardless of the merits of
individual claims, the Supreme Court had no reason to doubt that racial
discrimination was widely prevalent, particularly in the southern and
border states from which most Title VH cases came.' 20 While the Supreme Court of the 1970s thought that "common experience" supported
an inference of discrimination from proof of a McDonnell Douglas
prima facie case, a very different common experience impressed the
Fisher majority. The McDonnell Douglas Court, using as its model the
efforts of African-American workers to break down the barriers of racial
segregation, thought that discrimination was a likely explanation for
rejection of a qualified plaintiff. The Fisher majority, considering cases
where every unsatisfied worker has a prima facie discrimination claim
(and it may sometimes seem to the federal courts that every claim is
prosecuted), had a very different estimate of the probability that unlaw2
1
ful discrimination explains any given adverse employment decision.1
A third change relates to the requirement that a plaintiff show that
she is "qualified."''
The defendant in McDonnell Douglas admitted
that before the plaintiff was laid off from his job as a factory worker, his
119. See Green v. McDonnell Douglas Corp., 390 F. Supp. 501 (E.D. Mo. 1975), afT d,
528 F.2d 1102 (8th Cir. 1976).
120. McDonnell Douglas's St. Louis plant was not itself completely segregated, but it
was located in a segregated city. The first Title VII suit brought by the United States Department of Justice was occasioned by the building trades union's threat to strike in protest
against the hiring of an African-American plumber to help build the St. Louis Arch. See
United States v. Sheet Metal Workers Int'l Ass'n, Local 36, 416 F.2d 123 (8th Cir. 1969)
(then-Judge Blackmun was on the panel); see also David L. Rose, Twenty Years Later:
Where Do We Stand on Equal Employment Opportunity Law Enforcement?, 42 VAND. L.
REv. 1121, 1138 (1989).
The Fisher majority took pains to say that "we do not mean to suggest that ...dis121.
crimination is rare." Fisher, 114 F.3d at 1337. It implicitly determined, however, that it is
more rare in prosecuted cases than the McDonnell Douglas Court thought was the case.
This difference stands out even more starkly in the pretext context, where the Fisher
majority's view was that unlawful discrimination is not a highly likely explanation for adverse employment actions even where the explanation offered by the defendant is a pretext.
See id. at 1346-47.
122. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
1998]
FISHER v. VASSAR COLLEGE
work was "satisfactory."' 23 There was no claim that lack of qualification
figured in the decision not to rehire him. 2 4 But for a higher level employee, like a candidate for tenure at Vassar College, what does it mean
to be "qualified"? University tenure appointments involve criteria for
qualification that are specialized, indeterminate, controversial, and
competitive. To say that a candidate is qualified because her work is, or
is expected to be, "satisfactory," is to say very little about the likelihood
the candidate would be selected in the absence of discrimination.
As early as Burdine, the Supreme Court encountered new model
cases and the problems they presented for the McDonnell Douglas
structure. It ducked the problems, setting the stage for Fisherto grapple
with them at a time when the new model predominates and the old has
faded from view. The Court's internal debate shows both its acceptance
of the logical inference (rather than smoke-out) rationale and the difficulty new model cases create for that rationale.
Deborah Malamud recounts the story, from the papers of Justice
Marshall. 125 When Justice Stevens saw an early draft of Justice Powell's
opinion in Burdine, he sent Justice Powell a memo protesting that the
four facts were insufficient to justify an inference of discrimination. 26
To illustrate his point, Justice Stevens gave an example from his own
experience as an employer of law clerks: One year he had rejected a
qualified man in favor of a woman; two years later, he rejected qualified
women in favor of men. Should all the disappointed candidates have
prima facie cases of discrimination?2 2 This is a new model example,
very far from racism on the factory floor. Apparently in response to
Justice Stevens's memo, Justice Powell added to his draft opinion the
footnoted caveat that to make out a prima facie case, in addition to
qualification and rejection, the plaintiff needed to show "circumstances
which give rise to an inference of discrimination."'128 Justice Stevens
123. Id. (quoting Green v. McDonnell Douglas Corp., 463 F.2d 337, 353 (8th Cir.), cert.
granted, 409 U.S. 1036 (1972), and vacated and remanded, 411 U.S. 792 (1973)) (internal
quotation marks omitted).
124. See id.
125. See Malamud, supra note 8, at 2246-53.
126. See id. at 2247.
127. See id. at 2248. Justice Stevens was echoing concerns the Second Circuit had expressed years earlier, when it confronted a new model case-in fact, a claim of academic
discrimination. In Faro v. New York University, 502 F.2d 1229 (2d Cir. 1974), the court disparaged the explanatory power of the factor of qualification with an example: "[E]ven judges
are plagued by the difficulty of decision in selecting law clerks out of the many equally well
qualified." Id. at 1232.
128. Malamud, supra note 8, at 2248 (quoting Justice Powell, Draft Opinion 5
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29
joined the opinion, making it unanimous.
The issue arose again in United States Postal Service Board of
Governors v. Aikens,' 30 a case brought by an African-American raising
the new model claim that he was discriminated against when he was denied promotion to a high management position. The Marshall papers
show that a majority of the Justices appeared to agree that Aikens's
race, rejection, and minimal qualification for the position did not provide sufficient support for an inference of discrimination.''
Justice
Rehnquist initially proposed excluding cases involving management or
executive positions from the McDonnell Douglas structure. Justice
Powell suggested making the requirements of a prima facie case more
stringent in such cases. 32 In the end, in order to sidestep the question
altogether, the Court ruled that it did not have to decide whether the
plaintiff had established a prima facie case.13
This behind-the-scenes history shows a Supreme Court struggling
to preserve its original understanding of a McDonnell Douglas prima
facie case as the emergence of the new model eroded the factual premises of that understanding. Years later, in response to the Fishermajority's deprecation of McDonnell Douglas's four facts, Judge Newman
picked up on the accommodations the final version of the Burdine
opinion made to Justice Stevens's concerns. Judge Newman built his
defense of the inference of discrimination around Justice Powell's refer-
(Burdine) (Jan. 14, 1981), Thurgood Marshall Papers, Library of Congress, box 274, file 2)
(internal quotation marks omitted).
129. See id. at 2248-49.
130. 460U.S. 711 (1983).
131.
See Malamud, supra note 8, at 2249.
132. See id. at 2252. Justice Powell agreed with Justice Rehnquist that the four facts are
"insufficient to raise an inference of discrimination where a single executive position is to be
filled from a pool of qualified applicants." Id. (quoting Justice Powell, Draft Opinion 5
(Aikens) (concurring in the judgment) (Feb. 17, 1983), Thurgood Marshall Papers) (internal
quotation marks omitted). He would have emphasized that "the proof necessary to establish
a prima facie case will vary ... depending on the particular facts and circumstances of each
case." Id. (quoting Justice Powell, Draft Opinion 5 (Aikens) (concurring in the judgment)
(Feb. 17, 1983), Thurgood Marshall Papers) (internal quotation marks omitted). Justice
Marshall, joined by Justices Brennan and Blackmun, was prepared to dissent, arguing that
employers in low as well as high-level cases often rely on subjective considerations in making employment decisions. His solution was not to alter the requirements of the prima facie
case; instead, he would have left the employer's reliance on subjective elements to its rebuttal. See Malamud, supra note 8, at 2252.
133. See id. at 2253. Justices Blackmun and Brennan concurred, arguing that the employee was entitled to win whenever the plaintiff proved pretext, the position rejected in
Hicks. See Aikens, 460 U.S. at 717-18 (Blackmun, J., concurring). Justice Marshall concurred in the judgment without opinion. See id. at 717.
1998]
FISHER v. VASSAR COLLEGE
ence to "circumstances giving rise to an inference of discrimination"
and the footnote in Burdine that quoted McDonnell Douglas, suggesting
that proof other than the four facts might sometimes be required.'34
Judge Newman's implicit admission of the insufficiency of the four
facts plus pretext amounts to a recognition that times have changed and
a charge that doctrine, once flexible, has improperly rigidified.'35 The
majority also accepted the reality of the new model of discrimination
but reasoned in the opposite direction. To the majority, historical
change and the imperatives of doctrinal evolution combined to make the
original view of McDonnell Douglas utterly implausible. There is no
need to tinker with the four-fact prima facie test, the majority suggested.
Since a prima facie case consisting of the McDonnell Douglas four facts
does not always amount to significant evidence of discrimination, a
prima facie case is not always sufficient to support an ultimate conclusion of discrimination.
In the crossfire over the purpose of the prima facie test, none of the
opinions addressed the content of any of the four facts. Though Judge
Newman had the better of the argument historically, his understanding
134. Fisher, 114 F.3d at 1363 (Newman, C.J., dissenting). Judge Newman could also
have invoked InternationalBrotherhood of Teamsters v. United States, 431 U.S. 324 (1977),
in which the Court stated:
The importance of McDonnell Douglas lies, not in its specification of the discrete
elements of proof there required, but in its recognition of the general principle that
any Title VII plaintiff must carry the initial burden of offering evidence adequate
to create an inference that an employment decision was based on a discriminatory
criterion illegal under the Act.
Id. at 358. See also O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312
(1996), in which the Court cited Teamsters, and which Judge Winter cited. See Fisher, 114
F.3d at 1390 (Winter, J., dissenting).
135. As Judge Newman acknowledged, history has pulled employment discrimination
doctrine toward a fixed formula. See Fisher, 114 F.3d at 1366 (Newman, C.J., dissenting).
The four facts were applied by the Supreme Court in one kind of discrimination claim (the
original model claim of discrimination against African-Americans in low-level jobs), but
were generalized by the lower courts to every kind of employment discrimination case. The
Second Circuit had relied on Burdine's and McDonnell Douglas's references to flexibility
before Fisher,but only to excuse a plaintiffs inability to prove one of the four facts. See,
e.g., Montana v. First Fed. Sav. & Loan Ass'n, 869 F.2d 100, 104-05 (2d Cir. 1989) (holding
that an age discrimination plaintiff in a reduction-in-force (RIF) case need not show replacement by a younger worker if there are other circumstances from which discrimination
may be inferred); Hagelthorn v. Kennecott Corp., 710 F.2d 76, 81 (2d Cir. 1983) (same);
Pena v. Brattleboro Retreat, 702 F.2d 322, 324 (2d Cir. 1983) (finding that an ADEA plaintiff in non-RIF case need not show replacement by a younger employee); Stanojev v. Ebasco
Services, Inc., 643 F.2d 914, 920-21 (2d Cir. 1981) (holding that an age discrimination
plaintiff in a RIF case need not show replacement by a younger worker if there are other circumstances from which discrimination may be inferred).
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of the function of the prima facie case runs counter to the Second Circuit's deliberate determination to make a prima facie case easier to
prove by watering down the definition of "qualification."
The Second Circuit announced its standard for proof of
"qualification" in Zahorik v. Cornell University.'36 The court in Zahorik
acknowledged the tension between the traditional McDonnell Douglas
understanding of the qualification requirement in the prima facie casebasically, anything good enough to do the job-and the complexity of
tenure decisions. To ensure that Title VII effectively reached tenure decisions, the court defined prima facie proof of qualification in the tenure
context as no more than "a showing that some significant portion of the
departmental faculty, referrants or other scholars in the particular field
13
hold a favorable view on the question.""
The court set this relaxed
standard explicitly to give the plaintiffs a leg up at the initial stage, a
boost it thought was appropriate, as it said, "[g]iven the elusive nature
of tenure decisions.' 38
This loose definition of qualification, selected with the McDonnell
Douglas proof sequence in mind, means that proof of qualification in
this context is weak evidence indeed of discrimination. Though many
applicants may be "qualified" in the Zahorik sense for each tenured position, not all of those therefore able to make out a prima facie case will
necessarily be strong candidates on the merits.139 Indeed, the Second
Circuit has set a low standard of qualification in other areas as well. To
establish a prima facie case, a plaintiff need make only a "minimal
showing of qualification,""' ° and need not show that she is a strong or
even plausible candidate. For this reason, in any context where an employer bases its decisions on relative qualifications, proof of bare qualification (as defined by the Second Circuit) and the other three McDonnell Douglas facts will not support an inference of unlawful
discrimination; the entire weight of the inferential force of a prima facie
case would have to be borne by the requirement of showing "other cir136.
137.
729 F.2d 85 (2d Cir. 1984).
Id. at 94.
138.
Id.
at 93.
139. Zahorik described the requirements of a prima facie case as proof of qualification
plus "circumstances permitting an inference of discrimination." Id. at 94. This formulation
appears to suggest adherence to Judge Newman's view that the prima facie case includes
more than the four facts. But Zahorik immediately went on to caution that proof merely of
disagreement about the candidate's merit as a scholar would not carry the plaintiffs ultimate
burden of proof-implying that it would make out a prima facie case and that the "other circumstances" are no more than the other three McDonnell Douglas facts.
140. Owens v. New York City Hous. Auth., 934 F.2d 405,409 (2d Cir. 1991).
1998]
FISHER v. VASSAR COLLEGE
cumstances," which the Second Circuit has in practice ignored. The difficulty with Judge Newman's invocation of McDonnell Douglas and
Burdine is not that he misunderstood Supreme Court precedent, but that
before Fisherthe Second Circuit had decisively moved away from that
understanding. None of the opinions in Fisher addressed the devolution
of the qualification prong in the Second Circuit since McDonnell
4
Douglas.1
1
In this additional way, the Fisher court did not fully confront the extent to which times have changed since 1973.
Beginning with the open texture of McDonnell Douglas, Teamsters, Furnco, and Burdine, employment discrimination law might have
developed through the elaboration and specification of the ingredients
required to make out a prima facie case. This development could have
occurred in either of two ways. The requirement of showing qualification could have been made more demanding. Thus doctrine might have
required a plaintiff to demonstrate that she was as fully qualified as the
candidates selected for a noncompetitive position, or more qualified
than those selected for a competitive position.'4 2 In addition to or instead of such a "matched-qualifications" rule, courts might have been
more rigorous in holding a Title VII prima facie case to the standards of
a generic prima facie case, requiring a plaintiff to prove elements that
justify an inference of discrimination absent a nondiscriminatory explanation, and trying to develop standards as to what those elements might
141. Judge Calabresi may have had this change in mind when he said that "over time
the facts the plaintiff must show ...have become relatively minor." Fisher, 114 F.3d at
1355 (Calabresi, J., concurring in part and dissenting in part). The majority relied on the
myriad of cases describing the showing required for a prima facie case as slight, but did not
discuss the change in standards. See Fisher, 114 F.3d at 1340.
142. The Supreme Court seemed to invite such an approach when it said in Teamsters
that to prove a prima facie case a plaintiff must show that her rejection did not result from
"an absolute or relative lack of qualifications... [for] the job sought." International Bhd. of
Teamsters v. United States, 431 U.S. 324, 358 n.44 (1977) (emphasis added). The Second
Circuit has never applied this language to raise the standard for qualification. See Stanojev
v. Ebasco Services, Inc., 643 F.2d 914, 919 (2d Cir. 1981) (noting that Teamsters requires a
plaintiff to show only that he "possesses the basic skills necessary for the performance of
[the] job") (quoting Powell v. Syracuse Univ., 580 F.2d 1150, 1155 (2d Cir. 1978)). No
other circuit, except the Seventh in an early decision, has applied this language. See Holder
v. Old Ben Coal Co., 618 F.2d 1198 (7th Cir. 1980). In fact, one court has stated that "we
read the somewhat delphic Teamsters footnote as contemplating qualifications relative to the
entire pool from which applications are welcome, rather than qualifications relative only to
those eventually selected." Mitchell v. Baldrige, 759 F.2d 80, 85 (D.C. Cir. 1985). The
court of appeals in Aikens actually debated this issue. One of its grounds for reversal, over
Judge Wilkey's objection, was the district court's reliance on Aikens's relative lack of qualifications. See Aikens v. United States Postal Serv. Bd. of Governors, 642 F.2d 514, 519
(D.C. Cir. 1980), cert. grantedand vacated,453 U.S. 904 (1981).
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be. The seeds of this approach were certainly available in McDonnell
Douglas, Furnco and Burdine. But doctrine took another path, and by
1997 real analysis and evaluation of evidence was reserved for the third
stage. What remains from the shift of models and the rigidification of
doctrine is a prima facie case without force or function.
IV. THE MEANING OF PRETEXT: DOCTRINE CAUGHT IN
THE CONFLICT OF MODELS
Like the debate about the prima facie case, the Fisher court's debate about the significance of a pretext finding was shaped, and limited,
by a particular conception of discrimination-but with a difference: All
the Fisher opinions shared the traditional McDonnell Douglas understanding of pretext. We argue in this part that this shared understanding
is limited. When the original model of discrimination, based on animus,
is supplemented by the new model-in which stereotype may predominate-the nature of pretext changes. The implications of a pretext
finding, we argue, should change with it.
All sides in Fisheragreed that a pretext is a lie. Starting from that
premise, the minority drew on "the vast body of law allowing inferences
of consciousness of guilt to be drawn from dishonest behavior concerning facts material to litigation" to argue that a finding of pretext supported a permissive inference of discrimination. 4' The majority conceded that a pretext finding established "intentional[] dissembl[ing],"
but it did not agree that such dissembling should necessarily allow an
inference of discrimination.1 "
Employers, said the majority,
"characteristically give false explanations for employment decisions for
many different reasons," of which discrimination is only one. 145 Without more information, there is no reason to think it more likely than not
that the employer was lying to conceal discriminationrather than a third
motive. 146
Framed in the terms set by the participants, the disagreement between the opinions appears to be empirical. Whether it is reasonable to
draw an inference of discrimination from a lie depends on the relative
143. Fisher, 114 F.3d at 1390 (Winter, J., dissenting); see also id. at 1372-74 (Newman,
C.J., dissenting). The dissenters' two key comparisons were to flight from the scene of a
crime and a false exculpatory statement. See id. at 1390-91 (Winter, J., dissenting); id. at
1372, 1374 n.10 (Newman, C.J., dissenting).
144. Fisher, 114 F.3d at 1337.
145. Id. at 1346.
146.
See id.
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FISHER v. VASSAR COLLEGE
frequency of discrimination compared with third motives as the motivation that employers are hiding when they lie (or rely on their employees' lies) in discrimination trials. From this perspective, the majority's
description of factfinding as "exercises in logic as applied to the observation of human behavior,'
47
was too limited: The primary basis for de-
ciding whether to draw an inference of discrimination from a lie is not
logic, but experience. For this reason, the majority opinion is vulnerable to Judge Newman's criticism that it did not point to any evidence
itself.' 48
that third motives are likely, either in general or in Fisher
We offer a different perspective. As elaborated as this debate was,
we think its terms were unduly restricted. When an employer's judgment is biased by stereotypes, its explanation may conceal discrimination and yet not be a lie. The same discriminatory bias that led the employer to offer a baseless explanation may also lead him to believe that
explanation. An overly restrictive definition of pretext flows from the
Supreme Court's failure to address the complexity of its requirement
that plaintiffs prove discriminatory motivation. McDonnell Douglas itself, working with the assumptions of the original model, implicitly
adopted a highly simplified theory of discriminatory motivation and
pretext. In the years since, the Court has never seriously addressed the
complexities introduced by the mixture of animus and stereotyping that
characterizes new model cases.
We begin this section by noting the Supreme Court's support for
the premise that a pretext is a lie and tracing that definition to the original McDonnell Douglas model, which viewed discriminatory motivation as simple animus. We then illustrate how acknowledging that
stereotype is a source of discrimination strains the old definition of
pretext. Describing how the Supreme Court has left open the possibility
of a more realistic view of discriminatory motivation in employment
Id.
147.
148. See Fisher, 114 F.3d at 1368, 1376-77 (Newman, C.J., dissenting). This feature of
the majority opinion has inspired particularly hostile reaction from the plaintiffs' bar. For
example, Richard Seymour exclaimed:
[I]t passes all the understanding I can muster, why some judges are willing to turn
intellectual hand springs to avoid coming to grips with the basic fact that a
decision-maker who lies in a discrimination case has only one plausible reason for
doing so: to conceal discrimination. It is naive to believe that decision-makerswhose careers may be scarred or terminated if they are judicially found to have
including possible
risk everything,
intentionally-would
discriminated
prosecution for perjury and obstruction of justice, in order to conceal a defense.
RICHARD T. SEYMOUR AND BARBARA BERISH BROWN, EQUAL EMPLOYMENT LAW UPDATE
14-307 (BNA Fall 1998).
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discrimination cases, we argue for a new understanding of pretext that
takes account of the reality of new model discrimination.
A. Pretext
The Supreme Court has said a lot about the McDonnell Douglas
structure but almost nothing about the nature of pretext. Its main contribution, in fact, has been the choice of the term itself. In Fisher,in the
absence of a Supreme Court definition of pretext, Judge Newman turned
to the dictionary to support his understanding that a pretext is "a reason
not believe is the real reason for the acthat a person proffers but does
149
tion the person has taken.'
The closest the Supreme Court has come to an analysis of pretext
was a discussion in Hicks'5 ° that can only be called enigmatic. The
Court in Hicks seemed to agree with Judge Newman's understanding
without meaning to. Writing for the Court in Hicks, Justice Scalia indignantly resisted the dissenters' characterization of pretext as necessarily a lie,' but his refutation consisted of two counterexamples, in
both of which the pretext was a lie. In the first, the employer, taken in
by a lie told to it by its supervisory employee, later proffers that lie in
court. In the second, the jury thinks the employer is lying but is not
certain beyond a reasonable doubt; it would therefore not convict the
employer if the case were a criminal perjury trial instead of a civil suit
alleging employment discrimination. 52'
The Court in Hicks also distinguished-parenthetically and without
explanation-among false explanations based on whether or not they
inspire "a suspicion of mendacity.' 53 Those that suggest mendacity, the
Court opined, support a stronger inference of discrimination. 54 Because
this distinction implies that some pretexts may not involve mendacity, it
hints that pretext is broader than lying. But Justice Scalia left the hint
undeveloped and mysterious. The agreement in Fisherthat a pretext is
a lie was reasonable in light of the Hicks Court's failure to offer an al-
149. Fisher, 114 F.3d at 1371 (Newman, C.J., dissenting).
150. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
151. See id. at 520-21 (calling an employer or employer's witness who gives a pretextual explanation a perjurer and liar is "nothing short of absurd").
152. Judge Newman noted dryly that Hicks's "distinction between a knowingly false
statement of one's belief and a lie is not easy to describe." Fisher, 114 F.3d at 1371
(Newman, C.J., dissenting).
153. Hicks, 509 U.S. at 511.
154. See id.
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FISHER v. VASSAR COLLEGE
ternative understanding, and yet Hicks invites the sense that there may
be more to pretext, even if the Supreme Court did not put its finger on
just what that more might be.
B. Animus and Stereotype
The view of pretext-as-lie fits comfortably with the original view
of discrimination. In that view-the McDonnell Douglas view-an
overtly bigoted, exclusionary employer seeks to maintain a segregated
workforce in the face of legal prohibition. He defends charges of discrimination by fabricating legitimate reasons for his bigoted actions.
Though he is contemptuous of the law's attempts to change him and his
workplace, he is also savvy: He would rather lie than face the consequences of admitting that his act was the product of racial animus.
But this model of discrimination is far too simple to capture the
complexity of human motivation. The new model's emphasis on the
role of stereotyping is particularly salient in illuminating the limitations
of the Fisher court's view of pretext. 155 In the context of age and dis155. To define our terms, discrimination based on animus may include any employment
discrimination based on associational preferences, what Gary Becker has termed "a taste for
discrimination." GARY S. BECKER, THE ECONOMICS OF DISCRIMINATION 39-54 (2d ed.
1971); see also RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 615-17 (3d ed. 1986);
John J. Donohue III, Is Title VII Efficient?, 134 U. PA. L. REV. 1411, 1415-20 (1986). In its
most commonly understood form, animus involves wishing to exclude one group of workers
because of a desire to subordinate, or at least not to associate with, them. This form of discrimination, which views segregation or exclusion of the target group as a good in itself, is at
the heart of the sentiment that animated Jim Crow laws and practices.
The defining feature of stereotype, by contrast, is the ascription of traits to an individual based on the individual's membership in a group. Some leading examples of the
growing legal academic literature on stereotype and discrimination are: Linda Hamilton
Krieger, The Content of Our Categories:A Cognitive Bias Approach to Discriminationand
Equal Employment Opportunity, 47 STAN. L. REV. 1161 (1995); Charles A. Lawrence II,
The Id, the Ego and Equal Protection: Reckoning with Unconscious Racism, 39 STAN. L.
REV. 317 (1987); David Benjamin Oppenheimer, Negligent Discrimination, 141 U. PA. L.
REV. 899 (1993); Deborah L. Rhode, The "No-Problem" Problem: Feminist Challenges and
Cultural Change, 100 YALE L.J. 1731 (1991); Nadine Taub, Keeping Women in Their Place:
Stereotyping Per Se as a Form of Employment Discrimination,21 B.C. L. REV. 345 (1980).
Any kind of generalization from a group to an individual constitutes a stereotype as we understand the term. Thus, stereotype includes what economists refer to as "statistical discrimination." David Charny & G. Mitu Gulati, Efficiency-Wages, Tournaments, and Discrimination:A Theory of Employment DiscriminationLaw for "High-Level" Jobs, 33 HARV.
C.R.-C.L. L. REV. 57, 63-65 (1998); Edmund S. Phelps, The Statistical Theory of Racism
and Sexism, 62 AM. ECON. REV. 659 (1972). Chamy and Gulati discuss Fisher and the difficulties of applying the McDonnell Douglas structure to discrimination in high-level jobs in
the course of arguing that such discrimination is quite stable and resistant to correction by
current doctrine.
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ability discrimination, the Supreme Court has, as noted above, embraced
the understanding that discrimination may arise from stereotype. A
simple dichotomy between animus and stereotype, however, still leaves
a model that is crude indeed. While animus and stereotype are distinguishable analytically, in reality they overlap and mingle. For example,
discrimination against older workers may stem not only from stereotype
but from a preference for associating with colleagues perceived as more
vital and attractive. Similarly, advocates for the disabled have argued
powerfully that disabled workers may evoke conscious or unconscious
feelings of anxiety and revulsion that lead to or reinforce bias based on
stereotype.1 56 Even in a case like Fisher, stereotypes about the capacities of married women may be joined with animus against women who
choose the path of traditional marriage. On the other hand, someone
who has a "taste for discrimination" against a57 given group is very likely
also to have stereotyped views of that group.1
Moreover, stereotype is itself a complex category. Stereotype may
have a variety of sources. In the seminal article on the subject of the
role of stereotype in discrimination, Charles Lawrence points to psychodynamic explanations, including the substitution of stereotyping for
animus as animus has become less acceptable.'5 8 More simply, as Lawrence also notes, different group experiences or culture may lead to
stereotyping since, even without psychopathology, individuals absorb
group values and beliefs.'59 More simply still, lack of familiarity with
an individual may make it harder accurately to identify relevant traits
for employment and lead to reliance on group-based generalizations that
are not necessarily inaccurate as generalizations but may misdescribe an
individual. Indeed, generalization and inference from the general to the
particular are common and often valuable human traits. The law of employment discrimination does not depend on there being a lack of differences between groups, or even on resort to stereotyping being irrational.' 6° It may require special effort not to assume that individuals
156.
See generally JOSEPH P. SHAPIRO, NO PITY: PEOPLE WITH DISABILITIES FORGING A
NEW CIVIL RIGHTS MOVEMENT 199 (1993).
157. To take only the most obvious example, negative stereotypes about AfricanAmericans have co-existed with animus for centuries. The conjunction of the two is captured in the term "White Supremacy," at once a purported description and a political program.
158. See Lawrence, supra note 155, at 322-23.
159. See id. at 323. See generally Krieger, supra note 155 (canvassing, exhaustively,
the psychological literature on the nature and origins of stereotyping).
160. Some scholars have argued that discrimination in employment is not a significant
social problem because firms that are strictly meritocratic will ordinarily thrive, while firms
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FISHER v. VASSAR COLLEGE
conform to group stereotypes. This is nevertheless
what employment
6
discrimination law in most instances requires.'
C. Stereotype and Pretext
Acknowledging the role of stereotyping in discrimination, with its
complexities, illuminates as well as complicates the idea of pretext.
Where there is stereotyping, the line drawn in Fisher and McDonnell
Douglas between a lie offered by a discriminating employer and the
employer's real (discriminatory) motivation for its action blurs or disappears. To see how this occurs, consider some examples.
A member of the Vassar Biology Department might say to himself
that a married woman cannot be a productive scientist and, therefore,
that Dr. Fisher is not productive. Such a person could say with perfect
honesty both that his reason for voting against Dr. Fisher was his insistence on162 productivity and that his reason was her status as a married
woman. Varying the facts of the hypothetical exposes more problems
with the idea of the pretext-as-lie. Another department member might
believe that it is unlikely that a married woman could be a productive
scientist, but insist that the prejudice played no part in his decision. The
factfinder might decide that this person had overestimated his ability to
set his prejudice to one side and that his prejudice had colored his
that discriminate against good workers will be competitively disadvantaged. See, e.g.,
RICHARD EPSTEIN, FORBIDDEN GROUNDS: THE CASE AGAINST EMPLOYMENT DISCRIMINATION LAWS 31-47 (1992). In response, scholars have pointed out that reliance on
stereotypes can be rational for a firm because, among other reasons, the stereotypes may be
generally accurate, and the costs of searching out more accurate information may be prohibitive. See, e.g., Donohue, supra note 155. Charny and Gulati recently offered a theory of
how discrimination can be self-perpetuating in high-level jobs in particular. See Charny &
Gulati, supra note 155.
161.
As the Supreme Court has stated, in the context of facial discrimination against
women, "[elven a true generalization about the class is an insufficient reason for disqualifying an individual to whom the generalization does not apply." City of Los Angeles Dep't of
Water & Power v. Manhart, 435 U.S. 702, 708 (1978); see also J.E.B. v. Alabama ex rel.
T.B., 511 U.S. 127, 140 n.11 (1994) (citing the constitutional standard).
162. Note, however, that although the employer in this example is actuated by both a
legitimate motive (concern for scientific productivity) and a discriminatory motive, this example is not a case of "mixed motives," a term the Supreme Court used in Price Waterhouse
v. Hopkins, 490 U.S. 228 (1989) (plurality opinion). In Price Waterhouse, the district court
found that the defendant rejected the plaintiff partly on account of her failure to conform to
gender stereotypes and partly on account of real shortcomings. See id. at 236-37. The Supreme Court used the term mixed motives to refer to a mixture of independent valid and discriminatory considerations. In this hypothetical there are not two independent reasons:
There is one reason that can be characterized in two ways.
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judgment. A third member might not acknowledge such a bias to himself but nevertheless be governed by it.' 63 All of these hypothetical department members will have discriminated; all will have offered non6
discriminatory explanations for their conduct; but none will have lied.1 4
Another way to see the same point is to consider an example Judge
Newman used to illustrate the distinction between a pretext for discrimination and a mistake. Consider the case of an employer who fires
an employee because of an honest, but mistaken, belief that the employee has embezzled. In such a case, Judge Newman explained, the
employee would not have proved pretext simply by demonstrating that
he did not in fact embezzle. 165 Altering the example shows how stereotype blurs the distinctions. An employer who said, "I thought he was an
embezzler because he was Swiss and all Swiss are embezzlers," would
have admitted discrimination despite his honest but mistaken belief in
163. In a famous early experiment, Allport and Postman showed groups of subjects a
drawing depicting an African-American man and a white man talking to each other. See
GORDON W. ALLPORT & LEO POSTMAN, THE PSYCHOLOGY OF RuMOR 11 (1947). The
white man is holding a straight-edge razor. One subject viewed the drawing, then described
it to a second, and so on, like a game of "Telephone." See id. After six or seven transmissions, the African-American man was usually described as holding the razor, often in a
threatening way. This and other equally sobering social psychology experiments, most of
more recent vintage, are described by David Oppenheimer. See Oppenheimer, supra note
155, at 909-15.
164. Fisherinvolved group decision-mpkdng, which complicates matters further. The
various decision-makers within a group may hold all the positions described in the text and
more. Moreover, the group decision-making process provides a medium for transmission of
stereotype and animus, so that it can become impossible to sort out the roles played by
stereotype and animus, much less by the different nuances of stereotype. It may have been
considerations such as these that led the Supreme Court to hold that proof of bias on the part
of some members of a group taints a group decision. See Hunter v. Underwood, 471 U.S.
222, 228-30 (1985); Anderson v. Bessemer City, 470 U.S. 564, 579-80 (1985). Judge Newman discussed these cases in his dissenting opinion. See Fisher, 114 F.3d at 1370-71
(Newman, C.J., dissenting).
165. Judge Newman said, "The supervisor's proffered reason for the discharge is a pretext only if the supervisor says that embezzlement was the reason for the discharge and does
not believe that this was the real reason." Fisher, 114 F.3d at 1371 (Newman, C.J., dissenting). Judge Winter made the same point with an example that was similar to Fisher, and to
our first hypothetical: "[A] faculty may regard a tenure candidate's scholarship to be inadequate while the trier of fact believes that her writing is a major scholarly contribution. So
long as the faculty truly, even if mistakenly, holds that negative view, there is no Title VII
violation." Id. at 1387 (Winter, J., dissenting); see also id. at 1361 n.13 (Calabresi, J., concurring in part and dissenting in part). The Supreme Court in Burdine agreed, citing the
Second Circuit's opinion in Lieberman v. Gant, 630 F.2d 60 (2d Cir. 1980). "The fact that a
court may think that the employer misjudged the qualifications of the applicants does not in
itself expose him to Title VII liability, although this may be probative of whether the employer's reasons are pretexts for discrimination." Burdine, 450 U.S. at 259 (citations omitted).
1998]
FISHER v. VASSAR COLLEGE
the employee's guilt. This example can vary in the same way as the
previous one about the biology department. An employer might say, "I
believe almost all Swiss are embezzlers, but that's not the reason I
thought he was an embezzler. I thought he was an embezzler because
he looked nervous when he was leaving work one day." A factfinder
might conclude that the employer relied on the stereotype to make the
decision, even though he may not have realized he was doing so. Finally, suppose that when asked if he would have drawn the same inference of guilt if a non-Swiss employee looked nervous, the employer
testified, "I don't know," or even, "Now that you mention it, I guess I
wouldn't; I probably did base my decision on a stereotype." In each of
these cases, the employer both discriminated and made a mistake.
D. Stereotype and DiscriminatoryMotivation
These examples also highlight an additional difficulty with taking
stereotyping into account. Discrimination based on stereotype strains
not only the original model view of pretext, but also the Supreme
Court's requirement-often expressed, but never satisfactorily explained-that liability in McDonnell Douglas cases is predicated on
proof of discriminatory motivation. The Court, and since 1991 the
Congress, 66 has said that discrimination must be "intentional" to be unlawful, unless it meets the separate standards of disparate impact analysis. 167 Under this standard, "[p]roof of discriminatory motive is critical... .,,16' Discrimination based on stereotype strains this equation of
discriminatory motivation with intentional discrimination. As the hy169
pothetical examples show, someone "in the grip of... a stereotype'
may be motivated by discrimination and yet in a real sense not intend to
discriminate. He may simply not be aware, or fully aware, of the
stereotype's impact on his judgment.
In our variations on Judge Newman's embezzlement example, the
employer who was aware of relying on the stereotype knew he was discriminating; the employer who thought consciously only that the employee was nervous did not know he was discriminating; and the em166. See 42 U.S.C. § 1981a (1994). For use of the word "intent" in the original version
of Title VII, see 42 U.S.C. § 2000e-2(h) (1994).
167. See, e.g., Price Waterhouse v. Hopkins, 490 U.S. 228, 292, 294 (1989) (plurality
opinion); General Bldg. Contractors Ass'n v. Pennsylvania, 458 U.S. 375 (1982); Burdine,
450 U.S. at 255 n.8; Nashville Gas Co. v. Satty, 434 U.S. 136, 141 (1977).
168. International Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n.15 (1977).
169. Fisher, 114 F.3d at 1350.
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ployer who was prompted to think did not know at first, but then did in
the end. Under a sufficiently narrow definition of intentional discrimination, only the first employer, who was aware of the influence of
stereotype on his judgment, would clearly be guilty of unlawful discrimination. The second, who was equally biased but did not admit his
bias even to himself, would not be; and the inquiry itself, like an observation in quantum mechanics, would change the state of the third from
not guilty to guilty. A standard leading to results like these would reflect an extraordinarily crabbed and artificial view of the meaning of
discrimination. It also would provide generous rewards for employers
who are unreflective or obtuse about their conduct. It would invite the
perverse defense that although the defendant was biased he either did
not know he was biased or did not know that bias motivated his decision. Finally, such distinctions have little to do with the original language of Title VII, which simply forbade adverse employment decisions
that are made "because of' membership in a protected group.'7 °
Fisher itself illustrates how acknowledging stereotype-based discrimination complicates the meaning of "intentional" discrimination. In
Fisher, the strongest evidence that the plaintiff was treated unfairly was
the biology department's inaccurate disparagement of her scientific
work. Judge Motley explained this inaccuracy as a mistake stemming
from stereotype:
The persistent fixation of the Biology Department's senior faculty on a married woman's pre-Vassar family choices reflects the acceptance of a stereotype
and bias: that a married woman with an active and on-going family life cannot
be a productive scientist and, therefore, is not one despite much evidence to
the contrary.171
The Second Circuit did not suggest that this finding, if adequately supported by the record (Judge Jacobs said it was not 7 ), might be insuffi-
cient to support a finding of discrimination because it lacked an additional finding that the department members themselves were fully
conscious that their judgment of Dr. Fisher's productivity was distorted
by their acceptance of a stereotype.' 73 We think it was right not to do so.
170. 42 U.S.C. § 2000e-2(a)(1) (1994).
171. Fisher, 852 F. Supp. at 1216.
172. See Fisher, 114 F.3d at 1347-48 (Jacobs, J., concurring).
173. Judge Motley also found that Vassar acted dishonestly and in bad faith. To the
extent that Vassar really did believe that a married woman could not be a productive scientist, its criticism of Dr. Fisher's scientific productivity would not be a lie, and Judge Motley's findings of bad faith and acceptance of stereotype would conflict with rather than sup-
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FISHER v. VASSAR COLLEGE
The discussion above shows that in many cases it is neither useful nor
possible to distinguish among employers who rely on prohibited
stereotypes based on the level of their conscious awareness of having
done so.
The Supreme Court has not said how it would handle situations
like our hypotheticals. Like the term pretext, the Court's use of the term
"intentional discrimination" suggests that the law makes the very distinctions we have called artificial. But there is language pointing the
other way, and we think the question is still open. The Court has used
the terms "intentional discrimination" and "discriminatory motivation"
interchangeably. 7 4 Accordingly, it has not said how it would handle
situations, like our hypotheticals, where an employer intentionally took
an action that was discriminatorily motivated, but was not aware of the
contribution of stereotype and therefore at least in some sense did not
intend to discriminate.
The distinction the Court has made is between intent or motivation
on the one hand and effects on the other. This is an important distinction, but it is not the one at issue here. It was first made for Title VII in
Griggs v. Duke Power Co. 75 and in the equal protection setting in
Washington v. Davis. 76 Personnel Administrator v. Feeney 77 crystalport each other.
174. See, e.g., Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981)
("[Plaintiff may prove] intentional discrimination... directly by persuading the court that a
discriminatory reason.., motivated the employer .. " (citation omitted)). The Court has
also said, "[a] plaintiff is required to prove that the defendant had a discriminatory intent or
motive." Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 986 (1988). The Court has
distinguished motive from intent for the purpose of explaining that a benign motive (e.g.,
paternalism) will not excuse conduct undertaken with discriminatory intent. See, e.g., UAW
v. Johnson Controls, Inc., 499 U.S. 187, 199 (1991).
Title VII also uses the term "intentional" in a looser sense. Section 706(g) has always provided that a court may award affirmative relief only when it finds that an employer
"has intentionally engaged in or is intentionally engaging in an unlawful employment practice." 42 U.S.C. § 2000e-5(g)(l) (1994). The Second Circuit has observed that "[t]he requirement that an employer have discriminated 'intentionally' in order for the provisions of
[section] 706(g) to come into play means not that there must have been a discriminatory purpose, but only that the acts must have been deliberate, not accidental." Association Against
Discrimination in Employment, Inc. v. City of Bridgeport, 647 F.2d 256, 280 n.22 (2d Cir.
1981). This interpretation follows a fortiori from the conclusion that courts have authority to
remedy conduct that is unlawful under the disparate impact theory. On the other hand, section 703(h) immunizes bona fide seniority and merit systems except those that impose differences "that are the result of an intent to discriminate." 42 U.S.C. § 2000e-2(h) (1994). In
this context, "intent to discriminate" appears to be a synonym for discriminatory purpose or
motivation.
175. 401 U.S. 424 (1971).
176. 426 U.S. 229 (1976). Title VII and equal protection standards of discriminatory
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lized the distinction in a case reviewing a statute giving veterans a preference for state employment, a system that predictably disadvantaged
women. The Court held that an action taken with awareness of its inevitable adverse impact was not necessarily discriminatorily motivated;
to violate the Constitution, it was necessary that the challenged action
be taken "because of' its adverse impact, not "in spite of' it. 7 1 This
formulation of discriminatory motivation does not distinguish among
levels of awareness of the motivation. In all of our hypotheticals, the
employer's decision was made because of the employee's group membership, not in spite of it. All our versions of stereotype discrimination
therefore pass the Feeney test for discriminatory motivation.'79
The Court has condemned stereotyping in a variety of contexts,' 80
including employment discrimination, but its stereotyping cases have
almost always involved overt discrimination. It has judged overt discrimination based on stereotypes according to the "bona fide occupational qualification" standard and, typically, held overt discrimination
motivation are the same. See id. at 238. In the area of disparate impact they differ: Griggs
held that Title VII prohibits disparate effects even without discriminatory motivation, and
Washington v. Davis held that the equal protection clause does not.
177. 442 U.S. 256 (1976).
178.
Id. at 279 (internal quotation marks omitted). "Discriminatory purpose," the Court
said, "implies more than intent as volition or intent as awareness of consequences. It implies
that the decisionmaker... selected or reaffirmed a particular course of action at least in part
because of, not merely in spite of, its adverse effects upon an identifiable group." Id.
(citation omitted) (internal quotation marks omitted).
Discrimination based on stereotype does not always have a broad enough impact to
be actionable under the disparate impact doctrine. See supra note 108. To restate this point
affirmatively, a statistical disparate impact is not required to render discrimination against an
individual on the basis of stereotype unlawful.
179. See Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993). In Hazen Paper, the Court
described the proof standard applicable in disparate treatment employment discrimination
cases; it noted that the standard applied to the Age Discrimination in Employment Act
(ADEA) which, it had just emphasized, addressed stereotype discrimination. The standard
resembled Feeney's distinction between "because of' and "in spite of":
In a disparate treatment case, liability depends on whether the protected trait
(under the ADEA, age) actually motivated the employer's decision. The employer
may have relied upon a formal, facially discriminatory policy requiring adverse
treatment of employees with that trait. Or the employer may have been motivated
by the protected trait on an ad hoc, informal basis. Whatever the employer's decisionmaking process, a disparate treatment claim cannot succeed unless the employee's protected trait actually played a role in that process and had a determinative influence on the outcome.
Id. at 610 (citations omitted). This passage, like Feeney, does not acknowledge, much less
address, the question of the employer's awareness of the role the protected trait played in his
decision.
180. See J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994).
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FISHER v. VASSAR COLLEGE
unlawful because the generalization on which it is based is not universally true."8 ' Such cases raise but do not answer the question whether
discrimination based on stereotyping is prohibited in general or only
when the employer consciously adopts the stereotype.'82 The McDonnell Douglas structure, in fact, invites inattention to the nuances of an
employer's awareness of using a stereotype: An employer will surely
not raise the possibility of unintentional stereotyping as a defense, and
the necessity of determining the employer's thought process solely
through inference is likely to discourage fine distinctions. Nor are jury
instructions likely to focus on the potential distinction between intentional discrimination and discriminatory motivation. For example, the
Second Circuit recently approved an instruction that stated: "What does
'motivating factor' mean? The law requires that the employer ignore
sex or gender when making employment decisions.... The plaintiff
must show that her gender played a role in the defendants' decision
1 83
making process and had a determinative influence on the outcome.'
This instruction leaves the door wide open to assessing liability based
on any use of a gender stereotype, without regard to the defendant's
awareness of that use.
The Supreme Court's most serious foray into the connection between stereotype and discriminatory motivation is Price Waterhouse v.
Hopkins.' 4 Ann Hopkins was rejected for partnership in part because
she did not conform to stereotypes about appropriate female behavior;
she was tough and assertive instead of demure.'85 Price Waterhouse of181. See Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993); Los Angeles Dep't of Water
& Power v. Manhart, 435 U.S. 702, 708 (1978); Phillips v. Martin Marietta Corp., 400 U.S.
542 (1971).
182. In Watson v. Fort Worth Bank and Trust, 487 U.S. 977 (1988), the Court suggested
that "subconscious stereotypes and prejudices" should be addressed through disparate impact
analysis. Id. at 990. Its discussion was puzzling; it identified as an example of such
"subconscious stereotypes and prejudices" the comment that "the teller position was a big
responsibility with a lot of money.., for blacks to have to count." Id. (internal quotation
marks omitted). The Court said that "[s]uch remarks may not prove discriminatory intent,
but they do suggest a lingering form of the problem that Title VII was enacted to combat."
Id. It is hard to see either how this comment could be characterized as "subconscious"
stereotyping or, if a decisionmaker based a decision on the stereotype, how the decision
could be nondiscriminatory.
183. Luciano v. Olsten Corp., 110 F.3d 210, 219 (2d Cir. 1997). The court did not address the relationship of motive and intent; the defendant's objection was that the charge as a
whole watered down the causation requirement.
184. 490 U.S. 228 (1989) (plurality opinion).
185. See id. at 234-35. The Court in Price Waterhouse dealt with the issue of mixed
motives because the district court had found that part of the reason Hopkins was passed over
for partner was that she had genuine weaknesses in interpersonal relations. See id. Com-
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fers hints rather than analysis, but its hints appear at least consistent
with the view that the determining factor is whether a discriminatory
stereotype motivated a decision-not whether the defendant knew it was
influenced by the stereotype. Justice Brennan's plurality opinion did
not squarely address the question of whether the defendant had to know
that it was basing its decisions on sex stereotypes. He said that a plaintiff must show that "an impermissible motive played a motivating part
in an adverse employment decision."'86 For Hopkins, he continued, this
means that "if we asked the employer at the moment of the decision
what its reasons were and if we received a truthful response, one of
those reasons would be that the applicant or employee was a woman. 187
What does this definition mean? It plainly includes at least some
discrimination based on stereotyping: Price Waterhouse was a stereotyping case, and stereotyping means that the protected characteristic is
one of the reasons for the decision. Does the definition include all discrimination based on stereotyping? The key word is "truthful." Truthful is different from "honest." An honest answer may be inaccurate, and
an employer who is unaware that he is relying on a stereotype may honestly say he is not, even when in fact he is. But such an answer, though
honest, would not be true. If an employer used a stereotype, whether
consciously or unconsciously, a truthful answer would necessarily include an acknowledgment that
the protected characteristic was one of
88
the reasons for the decision.
Other passages in Price Waterhouse also suggest that motivation,
rather than any particular level of awareness of that motivation, is the
mentators have pointed out that the crispness of the Court's distinction between legitimate
and discriminatory motives may be artificial: The line between personality conflicts of the
type identified in both Price Waterhouse and Hicks and judgments influenced by stereotypes
may be blurry indeed. See, e.g., Mark S. Brodin, The Demise of Circumstantial Proof in
Employment DiscriminationLitigation: St. Mary's Honor Center v. Hicks, Pretext, and the
"Personality" Excuse, 18 BERKELEY J. EMP. & LAB. L. 183, 215-29 (1997); see also Calloway, supra note 116, at 1022-23.
186. Price Waterhouse, 490 U.S. at 250.
187.
Id.
188. The Random House Dictionary defines "truthful" simply as "conforming to truth."
THE RANDOM HOUSE DICTIONARY OF THE ENGLISH LANGUAGE 2031 (2d ed. unabridged
1987). Webster's Dictionary defines it as "accurate and sincere." WEBSTER'S THIRD NEW
INTERNATIONAL DICTIONARY 2457 (1993). If "truthfulness" requires being accurate and
sincere at the same time, then an employer who has in fact discriminated based on stereotype
cannot say truthfully that the plaintiffs gender was a factor in the adverse decision and cannot say truthfully that it was not; he would be insincere if he admitted discrimination, and
inaccurate if he denied it. Using this definition, the Price Waterhouse plurality was ambiguous about the extent to which the employer must be aware that its judgment is colored by
stereotype.
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FISHER v. VASSAR COLLEGE
key. Justice Brennan noted that the issue is whether "stereotyping
'
played a motivating role," 89
or whether a "discriminatory impulse
[played] a motivating part" in a decision,"9° but he did not add that the
employer must acknowledge that motivation to itself. His opinion concluded that the ultimate issue was "whether the partners reacted negatively to [Hopkins's] personality because she is a woman," without suggesting that they had to have been consciously aware of doing so.'9
Price Waterhouse and Hicks, then, have the same implications for
the analysis of pretext and discriminatory motivation. They both show a
Supreme Court that has neither foreclosed nor clearly approved an
analysis of motivation and pretext that more realistically takes stereotyping into account. Given that state of the law, the court in Fisher did
not have to tie itself to the limited view of pretext, and discrimination,
suggested by the language of McDonnell Douglas. It could have-and
we think should have-taken account of how a view of discrimination
that includes stereotype affects the meaning of pretext.
E. Animus, Stereotype and Pretext
Expanding the idea of pretext to encompass judgments that are
honest but biased because they are based on stereotypes expands the
189. Price Waterhouse, 490 U.S. at 252.
190.
Id.
191.
Id. at 258. On the other hand, the Court also emphasized Price Waterhouse's explicit gender references ("lipstick," "charm school," "soft-hued suit," and so on). Id. at 235,
256. But even with these references, there was no suggestion that it would matter if the
finder of fact found that Price Waterhouse did not realize that a reference to "charm school"
reflected sex stereotyping. (An employer obtuse enough to make such a suggestion might be
obtuse enough not to realize that it was sex stereotyping.) The plurality opinion contained
other passages that are similarly unilluminating about potential distinctions based on the employer's awareness that he is relying on a stereotype. It said, for example,
Remarks at work that are based on sex stereotypes do not inevitably prove that
gender played a part in a particular employment decision. The plaintiff-must show
that the employer actually relied on her gender in making its decision. In making
this showing, stereotyped remarks can certainly be evidence that gender played a
part.
Price Waterhouse, 490 U.S. at 251. The evidence that convinced the plurality that gender
discrimination influenced Price Waterhouse's decision was that it "invited partners to submit
comments; that some of the comments stemmed from sex stereotypes; that an important part
of the Policy Board's decision on Hopkins was an assessment of the submitted comments;
and that Price Waterhouse in no way disclaimed reliance on the sex-linked evaluations." Id.
It added, "By focusing on Hopkins' specific proof, however, we do not suggest a limitation
on the possible ways of proving that stereotyping played a motivating role in an employment
decision .... " Id. at 251-52.
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possibilities where an employer offers a false explanation for its conduct from the three recognized in Fisher (a lie to cover up discrimination, a lie to cover up something else, or an innocent mistake) to four: A
defendant who offers a false explanation for its conduct may either have
lied or not and in either case may or may not have unlawfully discriminated. The table below shows how these four categories are related.
Possibilities When Employer Offers a False
Explanation for its Conduct
Discrimination
Not Discrimination
Classic McDonnell
Douglasdiscrimination
Third motive situation described in
Fisher
Discrimination based
on stereotyping
Mistake (e.g., that
employee embezzled)
not caused by stereotyping
Explanation is:
A Lie
A Mistake
The top left quadrant of the table captures the case of a defendant
who offered a false explanation for its conduct, knew the falsity of its
pretext, and discriminated. It is classic McDonnell Douglas discrimination. The top right quadrant describes the defendant who intentionally
used a pretext to deflect attention from its true nondiscriminatory reason. This is the category of cases emphasized by the Fisher majority.
The bottom right quadrant captures those cases in which the defendant
honestly believed its untrue but non-pretextual explanation for a nondiscriminatory, though objectively unjustified, action. The additional category is shown in the bottom left quadrant. A defendant in this quadrant
has discriminated.
Because the defendant is "in the grip of ... a
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FISHER v. VASSAR COLLEGE
stereotype,"'' 92 it believes its false and biased explanation.
Although we believe this scheme clarifies the reality of discrimination, it represents yet another step away from the simplicity of
McDonnell Douglas. McDonnell Douglas seemed to say that if the
plaintiff disproved the defendant's explanation, there was only one possible result: The plaintiff, having proven pretext, won, as shown in the
upper left quadrant of the table. Burdine pointed out a second choice,
the innocent mistake shown in the lower right quadrant. Hicks showed
the third choice, the nondiscriminatory lie that conceals a third motive
shown in the upper right quadrant, and we have now proposed yet a
fourth.
This scheme has several implications for an analysis of pretext. A
factfinder who rejects the defendant's nondiscriminatory explanation
must, as Burdine has long required, determine whether the explanation
is a lie or a mistake. A finding of mistake, however, would not end the
analysis. The factfinder would then have to determine if the mistake is
the product of bias and stereotype-in terms of the table, whether the
defendant fits into the lower right or lower left quadrant. We propose
two principles for factfinders (and reviewing courts) making this decision. The first is that the nature of the explanation may support an inference of bias. If the untrue explanation is based on a stereotype, there
are grounds for a strong inference that stereotyping led the employer to
accept that explanation. What we propose is an amended version of a
suggestion Judge Calabresi made in Fisher. Accepting the premise that
a pretext is a lie, he urged that a lie related to a stereotype would support a strong inference of discrimination.' 93 We think not: Why would a
lying discriminator be particularly likely to select a false explanation
that is related to a stereotype (or, more precisely, any more likely to do
so than someone lying to cover up a third motive)? But a mistake that
reflects a stereotype is very likely to have derived from that stereotype
and so to be a telltale sign of discrimination.
A second principle for distinguishing an innocent mistake from a
mistake that is the product of bias is that the clearer the mistake, the
stronger the inference of bias. The reason for this rule is that a small
192.
Fisher, 114 F.3d at 1350 (Jacobs, J., concurring).
193.
See id. at 1360 n. 12 (Calabresi, J., concurring in part and dissenting in part). Thus,
in Fisher, Judge Calabresi, echoing Judge Motley, suggested that Vassar's (false) assertion
that Fisher spent insufficient time in the lab was evidence that Vassar was unlawfully influenced by a stereotyped view of married women. Judge Jacobs seemed to agree, with the important qualification that the stereotype may well have related not to married women but to
"working women, or (perhaps)... working mothers." Id. at 1350 (Jacobs, J., concurring).
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error is readily explicable as the product of ordinary human fallibility.
But the farther the employer is off base, the stronger the inference that
some kind of bias is interfering with the employer's judgment.'94
If the factfinder determines that the nondiscriminatory explanation
is not only false but is a lie, the debate returns to the battleground in
Fisher. In terms of the table, the debate moves from the lower two
quadrants to the upper two. Here, a different analysis is appropriate. In
support of its argument that a finding of pretext supports an inference of
discrimination, the dissent invoked the principles that a factfinder may
infer consciousness of guilt from a false exculpatory statement, flight
from the scene of a crime, or similar acts.' 95 The majority responded to
this argument by asserting that nondiscriminatory explanations are frequent. It referred, as we have noted, to "the numerous other reasons for
which employers so frequently give false reasons for employment decisions."' 96 We think that both the dissent and the majority mixed two different situations. The difference parallels the distinction between false
testimony and flight from the scene of a crime. The majority, like the
Supreme Court in Hicks, noted but did not spell out the implications of
the fact that employers may, in court, proffer explanations given by employees at the time of the challenged employment conduct. 197 That happened in Fisher, where the defense relied on the biology department's
report recommending denial of tenure.' 9 In such a case, the majority's
argument has force. At the time the department made its report, it may
not have had any reason to believe that it would be charged with discrimination based on age or sex plus marital status if Vassar denied Dr.
Fisher tenure; if it did not, there is no reason to infer consciousness of
guilt of those particular offenses from the department's lies. As the
majority pointed out, Title VII plaintiffs can often establish a "slew" of
prima facie cases, based on their age, sex, race, religion, and so on.' 99
194. Judge Motley made exactly this point with her observation that Vassar's bias prevented it from accepting the considerable evidence of Dr. Fisher's scientific productivity.
This principle is an alternative to Judge Friendly's observation in Lieberman v. Gant, 630
F.2d 60, 67 (2d Cir. 1980), cited by Judge Newman in Fisher, that strong evidence that an
explanation is implausible may also support an inference that the defendant did not actually
rely on it and was lying when it said it did.
195. See Fisher,114 F.3d at 1369, 1377, 1384-85 (Newman, C.J., dissenting); see id. at
1391 (Winter, J., dissenting).
196. Fisher, 114 F.3d at 1347.
197. See id. at 1338.
198. See id. at 1334. Judge Newman criticizes this reliance. See id. at 1378 n.13
(Newman, C.J., dissenting).
199. Fisher, 114 F.3d at 1337.
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FISHER v. VASSAR COLLEGE
At the time of the lie, the range of plausible motives for lying may be
wide open, and drawing an inference of any particular motive in the absence of additional confirmatory evidence in such a case is bootstrapping. In this limited circumstance, the panel opinion would be right to
say that a pretext finding "points nowhere."2°°
On the other hand, where a defendant offers false testimony in
court, the majority's claims about the likelihood of third motives are
strained. Its statement must be modified to read, "the numerous other
reasons for which employers so frequently give false reasons for employment decisions" 20 ' under oath when defending discrimination
claims. In this context, the analogy is not to flight from the scene of a
crime but to all the other instances in which lying in court authorizes an
adverse inference. As Richard Seymour noted in the passage quoted
above,02 rejection of an inference of discrimination in such circumstances means accepting that the employer lied under oath for the purpose of concealing a defense. 23
V. PRETEXT, THIRD MOTIVES AND SUFFICIENCY OF THE EVIDENCE:
SALVAGING THE MCDONNELL DOUGLAS STRUCTURE
IN THE ERA OF THE NEW MODEL
To summarize the doctrinal implications of what we have said so
far, the emergence of the new model of discrimination has brought with
it erosion of the probative force of the McDonnell Douglas four facts.
So long as Judge Newman's attempted reconstruction of the prima facie
case is not adopted, as it was not in Fisher, the prima facie case cannot
in and of itself provide the basis for an inference of discrimination. In
addition, while a pretext finding can provide such a basis more often
than the majority suggests, there are situations beyond those identified
200. Id. at 1345.
time of the pretextual
charged or feared that
ogy to flight holds and
201.
If there is some evidence besides the bare fact of pretext that at the
statements the defendant either was discriminating on the ground
the plaintiff would charge it with such discrimination, then the analthe pretext is evidence of discrimination.
Id. at 1347.
202. See supra note 148 and accompanying text.
203. Two situations should be further distinguished. Where the employer relies on a
contemporaneous justification given by an employee, who may have left its employ or be
unavailable to testify, the case for an inference of discrimination is much weaker than where
the decisionmaker or other agents of the defendant repeat the false claims in court under oath
in order to rebut a plaintiff's discrimination claim. Justice Scalia and the Fisher majority
point to the first situation. The second is surely more common. For example, in Fisherthe
former biology department chairman and the former dean repeated in court the substance of
the contemporaneous tenure report. See Fisher,852 F. Supp. at 1207-09.
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by the dissent where it cannot.
But there is more to say about the inferences to be drawn from a
pretext finding under the McDonnell Douglas structure. We think the
Fisher majority's analysis is inconsistent with McDonnell Douglasand with the Supreme Court's decision in Hicks-for a different reason
from those offered by the dissent. The Fisher majority's main error is
that it effectively discarded the McDonnell Douglas inferential approach, which the Court in Hicks had modified and strained but retained. The Court in Hicks allowed proof by the McDonnell Douglas
method of exclusion--disproof of the employer's proffered justification-although it made that method much more difficult. Fisher undercut the whole approach.
The McDonnell Douglas proof structure allowed a plaintiff to
prove discrimination without direct evidence. The possibility of such
proof is necessary because direct evidence of discriminatory motivation
can be hard to come by: "There will seldom be 'eyewitness' testimony
as to the employer's mental processes." 2°4 McDonnell Douglas and
Burdine's solution to the problem of lack of direct evidence was to permit proof of discrimination by exclusion of other possible reasons for
the employer's actions. The logical foundation of this method of proof
is the process of elimination-applying the (Sherlock) Holmesian dictum that "when you have eliminated the impossible, whatever remains,
however improbable, must be the truth." 2°' Proof of the prima facie case
excludes "the most common nondiscriminatory reasons. 2 6 Disproof of
the employer's articulated justification excludes the others. What is left
207
as an explanation is discrimination.
Although the Court in Hicks held that proof of a prima facie case
and pretext does not compel judgment for the plaintiff, it retained a
critical restriction: The range of possible third motives the factfinder
may consider is limited to those that have some foundation in the evidence. In response to the dissent's argument that the Court's holding
204. Fisher, 114 F.3d at 1340.
205. ARTHUR CONAN DOYLE, The Sign of Four, in THE COMPLETE SHERLOCK HOLMES
111 (1930) (emphasis omitted).
206. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248,254 (1981).
207. The civil preponderance of the evidence standard makes due allowance for the fact
that in cases not involving the great detective, "[clertainty generally is illusion, and repose is
not the destiny of man." Oliver Wendell Holmes, Jr., The Path of the Law, 10 HARV. L.
REv. 457, 461 (1897). Additionally, a factfinder with less than perfect confidence in the
force of logic remains free to reject a claim of discrimination that is independently shown to
be improbable. See infra note 213.
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FISHER v. VASSAR COLLEGE
would require a plaintiff to comb the record and disprove every possible
nondiscriminatory justification "lurking in the record,"2 °8 Justice Scalia
agreed that a plaintiff would have to do precisely that. He found this
requirement implicit in the McDonnell Douglas-Burdine structure.
There is, he reasoned, no difference between the nondiscriminatory explanations articulated by the defendant and the range of explanations the
plaintiff's proof must exclude in order to prove discrimination. Since a
defendant articulates a nondiscriminatory justification simply by introducing evidence from which a jury may find it, any potential explanation supported by the evidence has by definition been "articulated.' °9
This reading of Burdine and McDonnell Douglas is questionable, and
Justice Scalia was not entirely consistent in his use of the terms
"pretext," "proffer," and "articulate," referring elsewhere to the employer's proffered justification as something different from the nondiscriminatory justifications the plaintiff must disprove. 20"
But he was
clear that any third motives must have support in the evidence.2 11 And
the minority, which was appalled that the Court required plaintiffs to
disprove every potential third motive for which there was some evidentiary support, did not even guess that a defendant might be allowed to
rely on a justification lurking outside the record.2 2 After Hicks, the
McDonnell Douglas proof structure was strained, but plaintiffs without
affirmative evidence could still prove discrimination by disproving the
alternative explanations for which there was support in the record.
The Fishermajority's reasoning would make this method of exclusion completely unavailable, at least in many cases. The majority expanded the set of possible third motives from those available based on
evidence in the record to the universe of possible nondiscriminatory
motives. The fundamental difference between Fisher and Hicks is that
the Fisher majority frees defendants from the record; in the majority's
view, plaintiffs must disprove an unbounded set of possible alternative
motivations that are not based on evidence in the record. The implica208. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 535 (1993) (Souter, J., dissenting).
209. Hicks, 509 U.S. at 522-23.
210. See, e.g., id. at 511 & n.4 (disapproving "the Court of Appeals' holding that rejection of the defendant's proffered reasons compels judgment for the plaintiff") (emphasis
added). The Court stated, "Even though (as we say here) rejection of the defendant's proffered reasons is enough at law to sustain a finding of discrimination, there must be a finding
of discrimination." Id. at 511 n.4. Furthermore, "That the employer's proffered reason is
unpersuasive, or even obviously contrived, does not necessarily establish that the plaintiffs
proffered reason of race is correct." Id. at 524.
211.
See Hicks, 509 U.S. at 522-23.
212. See id. at 534-35 (Souter, J., dissenting).
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tion of this change is that plaintiffs cannot prevail even in principle by
excluding nondiscriminatory alternatives.213
The Fisher majority reinforced this point by endorsing the panel
opinion's "points nowhere" statement.2 4 To say that a pretext finding in
and of itself points nowhere is to say that there must be some affirmative evidence of discrimination in addition to the evidence discrediting
the alternative explanations (whether those alternatives are proffered by
the defendant or lurking in the record). The Fisher majority established
this criterion explicitly as well when it said that the inferential force of a
pretext finding depends largely on the strength of the nonpretext evidence of discrimination. 5
This is the approach that has come to be known by the shorthand
"pretext-plus. 21 6 In the wake of Hicks, the circuits have split over
whether a plaintiff must introduce some evidence in addition to ("plus")
proof of pretext in order to prevail.217 By aligning itself with the pretextplus camp (albeit without using the phrase), the majority declined to
make the allowance the McDonnell Douglas-Burdine structure contemplates for the difficulty of proving an employer's state of mind.2 8 It left
213. Hicks illustrates the same point in a different way. To show how a plaintiff could
prove pretext but not discrimination, Justice Scalia posited a case where the employer's explanation for his decision not to hire the plaintiff was found pretextual, but the employer's
record of minority hiring and the fact that the decisionmaker was a minority amounted to
"utterly compelling evidence that discrimination was not the reason" for the employer's action. Hicks, 509 U.S. at 514 n.5 (emphasis omitted). The employer in this hypothetical disproved discrimination without evidence of a third motive but with specific evidence of nondiscrimination. In Fisher,by contrast, where the defendant also won without evidence of a
third motive, the defendant won not by proof of the absence of discrimination but by the
plaintiff's absence of proof of discrimination. This is a very different standard, one that requires the plaintiff to produce affirmative evidence of discrimination as well as disprove the
range of potential third motives.
214. Fisher, 114 F.3d at 1335.
215. See id. at 1346.
216. The term was first used in Valdez v. Church's Fried Chicken, Inc., 683 F. Supp.
596, 631 (W.D. Tex. 1988). It was popularized by a law review article, Catherine J. Lanctot,
The Defendant Lies and the PlaintiffLoses: The Fallacy of the "Pretext-Plus" Rule in Employment Discrimination Cases, 43 HASTINGs L.J. 57 (1991), and used by Justice Souter in
his Hicks dissent. See Hicks, 509 U.S. at 535-36 (Souter, J., dissenting). Justice Souter said,
presciently, that the Hicks majority gave "conflicting signals" about whether plaintiffs were
required to prove pretext-plus. Id. at 535.
217. See supra note 23.
218. The academic literature provides an additional reason a factfinder should be constrained in precisely the way that Fisher fails to require. Professor Ronald J. Allen has argued that the role of factfinders is and should be to compare the versions of the facts put
forward by the parties rather than to proceed in the stepwise fashion contemplated by ordinary jury instructions, evaluating the plaintiff's proof of each element and finding for the
plaintiff if and only if she proves each element by a preponderance of the evidence. See
1998]
FISHER v. VASSAR COLLEGE
in place the form of the McDonnell Douglas structure without any substance: a de minimis prima facie case, an even slighter burden on the
employer to articulate an explanation for its action, and an ultimate burden on the plaintiff to prove219 discrimination that leaves no room for an
inferential method of proof.
We conclude with a practical suggestion for litigants aiming to reveal "the elusive mental element" in employment discrimination cases.
It will also help courts manage such cases and make trial outcomes
more reliable (and, concomitantly, less vulnerable on appeal). The dissenters in Hicks warned that expanding the range of explanations plaintiffs have to rebut means that "Title VII trials promise to be tedious affairs," burdening litigants and the judiciary. 22 They are right, but there
is a solution.
Hicks both expanded the number of nondiscriminatory reasons that
a plaintiff must rebut and made those reasons harder to identify. Fisher
Ronald J. Allen, The Nature of Juridical Proof, 13 CARDOzO L. REV. 373, 409-20 (1991);
Ronald J. Allen, A Reconceptualization of Civil Trials, 66 B.U. L. REV. 401 (1986). The
problem with the stepwise approach, which is the standard model of factfinding, is what has
come to be known as the "conjunction problem." Suppose a cause of action has three elements: liability, causation, and some fixed amount of damage. A plaintiff who proves each
element by a bare preponderance of the evidence would be entitled to a verdict. But if the
elements are independent of each other and the probability of each is .6, then the probability
that all three are true is .6 x .6 x .6 or .216, far less than the "more probable than not" threshold of .5+. Allen's solution to this paradox is to capitalize on the observation that juries do
not in fact work mathematically; they evaluate evidence more globally. He would make the
global approach a virtue and a necessity by reconceptualizing trials as a choice between the
parties' versions. If the jury is free instead to consider all possible explanations of an event,
even those for which there is no evidence one way or the other, it will very often be accurate
to say that the plaintiff has not proven her case because she has not excluded the indeterminate probability of all the possibilities for which there is no evidence. But such an approach,
Allen argues, would tilt the scales unfairly by resolving all ambiguity against the plaintiff
instead of distributing it across the parties.
In the context of suits for violation of the Labor Management Relations Act, the Supreme Court anticipated this position (though not the analysis), holding that judicial speculation about possible third motives is improper. The employer must introduce evidence of
those motives for them to be considered. See NLRB v. Great Dane Trailers, Inc., 388 U.S.
26 (1967). A lively academic discussion about the conjunction problem and the nature of
factfinding has flourished for twenty years in the shade of virtually complete judicial inattention. (The only exception appears to be Spitz v. Commissioner, 954 F.2d 1382, 1384-85
(7th Cir. 1992) (Posner, J.); see also Richard A. Posner, Legal Narratology, 64 U. CHI. L.
REV. 737 (1997) (reviewing LAW'S STORIES (Paul Gewirtz & Peter Brooks eds., 1996)).)
219. Fisher's impact on the law in the Second Circuit of course remains to be seen.
Even if our analysis is exactly right, the court remains free to read Fisherto mean much less
than we think the majority says. Judge Newman, for example, was far from conceding that
Fisher would have lasting influence. See Fisher, 114 F.3d at 1386 (Newman, C.J., dissenting).
220. Hicks, 509 U.S. at 538 (Souter, J., dissenting).
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made them unlimited. The rise of trial management orders, as well as
the toolbox provided by the discovery provisions of the Federal Rules,
can solve the problems the decisions in Hicks and Fishercreate, as well
as streamline and clarify trials. After Hicks and Fisher, plaintiffs should
ask defendants in depositions and interrogatories to identify all the reasons that may have played any part in the adverse employment decision
22
at issue.
Those discovery requests should be followed with requests
for . ' •222
for admission asking the defendant to admit that there are no reasons
for its action other than those that have been identified. A trial memorandum of the kind widely in use in the district courts can further specify and limit the potential explanations for a defendant's decision that
the jury is entitled to consider. District court judges, who want focused
trials, ought to encourage such itemizations of the defendant's possible
reasons for its actions. A diligent plaintiff may then be in a position to
proceed by way of elimination, proving discrimination by disproving all
the alternative explanations. 23 As the McDonnell Douglas rule has become less structured, trial preparation in federal courts has become
more so. Modern trial management may be able to restore some of the
structural coherence the McDonnell Douglas Court hoped to bring to
Title VII litigation.
221.
222.
See FED. R. CIV. P. 27, 30-34.
See FED. R. CIV. P. 36.
223.
Deborah Malamud argues that the trier of fact should be entitled to reject the positions of both parties, as the trial judge did in Hicks, even in the teeth of formal restrictions
like the kind imposed by requests for admission or trial memoranda. See Malamud, supra
note 8, at 2272-74. She says the ordinary rule in civil litigation is that triers of fact may base
their verdict on such "rogue theories." Id. at 2273 n. 146. In addition to the policy argument
that the mental element in discrimination should be provable by the process of elimination,
and the arguments described in note 218, supra, the short answer to this argument is that
whatever freedom juries may have to base their verdicts on versions of the facts different
from those asserted by the parties, requests for admission, at least, are intended to constrain
factfinders to accept certain facts that have been "conclusively established."