AN OVERVIEW OF
SELECT DISPARATE TREATMENT
TITLE VII CASES
"DISMANTLING THE GLASS CEILING"
Wendy J. Thompson
University Counsel
and
Assistant to the President
Middle Tennessee State University
I.
INTRODUCTION
Over the years, employment discrimination decisions have
continued to narrow and define issues of proof, liability, and
damages.
Inclusive in that body of cases are those alleging
gender discrimination in promotion opportunities.
These cases
reflect a societal phenomenon commonly referred to as the "glass
ceiling".
In short, the "glass ceiling" describes circumstances
akin to a barrier unseen to the naked eye, which seems to prevent
women in the workforce from advancing to higher level positions
in their particular companies or work environments, despite their
proven capabilities.
Policies and practices which hinder the
opportunities for advancement based on gender are as insidious as
those which exclude women from hire and subject the employer to
the same liability penalties.
Equally as damaging is the
resulting atmosphere of low morale and diminished credibility
regarding personnel decisions.
Failure to promote, based on gender or sex, is unlawful
discrimination and violates Title VII of the Civil Rights Act of
1964, as amended.
Such decisions, when intentionally made
against a protected person or group, result in disparate
treatment.
Disparate treatment in promotional opportunity cases
are decided utilizing the line of United States Supreme Court
decisions stemming from its 1973 decision in McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 800 (1973).
This outline will
discuss McDonnell Douglas, St. Mary’s Honor Center v. Hicks, 509
U.S. 502 (1993), and Kolstad v. American Dental Association, 119
S. Ct. 2118 (1995), and their progeny of discrimination cases.
This body of case law is instructive in advising clients on the
legal parameters of employment actions, and the repercussions of
basing employment decisions on factors other than qualifications,
merit, and performance.*
II. McDONNELL DOUGLAS
The Supreme Court in McDonnell Douglas noted a societal
interest in its decision, stating, "The broad, overriding
interest, shared by employer, employee, and
consumer, is efficient and trustworthy workmanship assured
through fair and racially neutral employment and personnel
decisions.
In the implementation of such decisions, Title VII
tolerates no discrimination, subtle or otherwise."
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This outline discusses only intentional discrimination
against individuals and therefore does not include "disparate
impact" decisions.
*
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In its decision, the Court established the order and allocation
of proof in employment discrimination cases as follows:
A.
Allocation of Proof:
The plaintiff carries the initial burden of establishing a
prima facie case of discrimination.
In order to do this, the
plaintiff must establish that: (1) he or she is within a
protected class; (2) he or she applied and was qualified for the
job; (3) he or she was denied the job; and, (4) the position
remained open, and the employer continued to seek applicants from
persons of complainant’s qualification.
B.
Order of Proof:
The procedural steps in the process are:
1.
If the plaintiff has established a prima facie case
using the four-part test, then;
2.
The employer must articulate some legitimate nondiscriminatory reason for the requisite evidence.
If the employer does so, then;
3.
The plaintiff must show that the employer’s offered
reason was a pretext or discriminatory in its
application.
III. ST. MARY’S
A divided Supreme Court decided in 1993 that once an
employer proffers a non-discriminatory reason for the adverse
employment action--even if false--the burden shifts back to the
individual to prove that unlawful discrimination was the basis
for the adverse action.
The decision purported to clarify the
burden of proof issue by articulating that the plaintiff must
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always prove that the basis for the adverse action was
discriminatory.
It is no longer sufficient to show that the
employer’s reason was a pretext--the plaintiff must prove that
the reason offered was a pretext for a discriminatory act.
The dissenting opinion states:
The majority’s scheme greatly disfavors Title VII
plaintiffs without the good luck to have direct
evidence of discriminatory intent . . . under the
majority’s scheme.
A victim of discrimination
lacking direct evidence will now be saddled with the
tremendous disadvantage of having to confront, not
the defined task of proving the employer’s stated
reasons to be false, but the amorphous requirement
of disproving all possible nondiscriminatory reasons
. . . .
Even though the majority restated its acknowledgment in Postal
Service Board of Governors v. Aikens, 460 U.S. 711 (1983), of the
sensitive and difficult questions for triers of fact in
discrimination cases, and the fact that there is seldom
eyewitness testimony as to the employer’s mental processes, the
dissent emphatically felt that the majority opinion would have
the effect of raising the burden for the plaintiff as opposed to
merely clarifying it, as stated by Justice Scalia in the majority
opinion.
As always, the employee maintains the burden of proof in
establishing a prima facie case of discrimination utilizing the
four-part test in McDonnell.
Once that burden is met, if the
employer advances any legitimate, non-discriminatory reasons for
the adverse action, the burden returns to the plaintiff to prove
that the real reason was discrimination.
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The McDonnell Douglas
"show pretext or discrimination" standard is now the "show
pretext and discrimination" standard.
IV. KOLSTAD
In Kolstad, the Supreme Court decided the issue of the
circumstances under which punitive damages may be awarded.
The Court held that the language of the Civil Rights Act of
1991 allowing punitive damages under Title VII in cases where an
employer has engaged in intentional discrimination "with malice"
or reckless indifference to the federally protected rights of an
aggrieved individual did not require a finding of "egregious"
conduct.
Rather, the terms "malice" or "reckless indifference"
pertain to the employer's knowledge that it may be acting in
violation of federal law, not its awareness that it is engaging
in discrimination.
The Court went further to state that once the requisite
state of mind is shown, the plaintiff must then go on to impute
liability for punitive damages to the employer.
The Court
analyzed the theories of agency principles regarding vicarious
liability, contrasting them with the intent of Title VII to
encourage employers to adopt and implement antidiscrimination
programs.
It found that a strict application of vicarious
liability principles in Title VII cases might reduce the
incentive for employers to implement such programs and would
operate contrary to the prophylactic purpose of Title VII.
The
Court held that an employer may not be vicariously liable for the
discriminatory employment decisions of managerial agents where
these decisions are contrary to the employer's good faith efforts
to comply with Title VII.
V.
APPLICATION TO PROMOTION CASES
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The framework established in McDonnell Douglas and clarified
in St. Mary’s has been applied with appropriate modifications to
cases involving the denial of promotions.
A.
In Evans v. Technologies Applications & Service Co., 80
F.3d 954 (4th Cir. 1996), the court found that when there are
stated qualifications for promotion, the plaintiff must establish
that she was better qualified for the position than the person
selected.
Ms. Evans was initially hired as a temporary worker
and two months later became a full-time employee.
She received
good evaluations, which described her as an excellent employee,
but also indicated that her attitude and "moodiness" would affect
her promotability.
on the job.
She also received a reprimand for squabbling
Several personnel changes took place, some for
financial reasons, which resulted in a supervisory opportunity
being offered to another employee.
The plaintiff did not have a
chance to apply for the supervisory position.
In response to the
plaintiff’s discrimination charge, the employer pointed out the
shortcomings noted on plaintiff’s evaluations and offered
evidence that the selected individual’s qualifications were
better suited to the new position.
The court found that Ms.
Evans failed to demonstrate that she was more qualified than the
selected employee and went further to state that, because the
person who hired the plaintiff was the same person who failed to
promote her, there is a powerful inference that this action was
not motivated by discriminatory animus.
Evans at 959 (citing
Proud v. Stone, 945 F.2d 796 (4th Cir. 1991) (emphasis added)).
B.
In Lyoch v. Anheuser-Busch Co., 139 F.3d 612 (8th Cir.
1988), the court found that the employee had presented sufficient
evidence to raise a factual issue as to whether she was qualified
for a promotion by offering evidence of good evaluations and
recommendations for promotions by a supervisor; testimony from
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someone who worked closely with her that she was qualified for
the promotion; and finally, that Anheuser-Busch’s promotion
policy was informal and subjective.
The court held that "a
plaintiff alleging a prima facie case of failure to promote
should not bear the same burden when the criteria are subjective
and the process vague and secretive as when the case involves
objective hiring criteria applied to all applicants."
Id. at 615
(internal quotations omitted).
C.
In Carey v. Mt. Desert Island Hospital, 156 F.3d 31 (1st
Cir. 1997), the court applied the analyses of McDonnell Douglas
and St. Mary's and determined that the plaintiff could use the
same evidence to prove pretext and discrimination.
The plaintiff, a male, was employed as Vice President of
Finance at a community hospital.
The chairperson of the Board of
Trustees and the professional recruiter engaged to find a CEO
were both female.
Mr. Carey applied for the position of CEO and
was told that he would not be considered.
Mr. Carey was
discharged following an audit of his department which identified
areas needing to be rectified.
The court found that Carey's
assertion that the employer’s offer of proof that it relied on
the audit was a pretext was neither unsupported or unfounded.
Using St. Mary's, the Court stated that Carey's next step would
be to introduce evidence that the justification was a pretext for
anti-male animus.
The Court then looked at circumstantial
evidence which could point to evidence of gender discrimination.
The Court considered evidence such as the fact that a first draft
of a Mission Statement for the hospital barred the employment of
men; the Director of Nursing stated that the hospital had
different standards for men and women; the person in charge of
identifying a prospective CEO stated that they would very much
like to put a woman in that position.
The Court found that the
statements and incidents related to a group of top officials and
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that therefore there was sufficient evidence to find gender
discrimination.
D.
In Arrington v. Cobb County, 139 F.3d 865 (11th Cir.
1998), the plaintiff was a female employed by the county fire
department for over twenty years.
She began working in the
department before women were allowed to become firefighters.
She
became a firefighter when the prohibition against women was
lifted in 1980, but she never took an active firefighting
position.
In 1984, she was promoted to Assistant Chief for
Administration.
The Fire Chief stated that she was chosen based
on her examination, excellent job performance and her knowledge
of fire department operations and administration.
A management
study of the department done in 1992 stated that the plaintiff
was performing both administrative and operational decisions.
The Chief responded to the study by acknowledging that the
plaintiff was performing operational responsibilities and went
further to state that he had made her the de facto head of the
department in his absence.
was reorganized.
When the Chief retired the department
The plaintiff applied for promotion to chief.
According to the person with responsibility for selecting the
Chief, the plaintiff was not promoted based on her lack of
operational experience.
Under the reorganization the plaintiff’s
current position was consolidated with another existing position
into a newly created Deputy Chief position.
The plaintiff
applied for the Deputy Chief position, but was not selected.
The
new Chief stated that he passed over the plaintiff due to her
lack of operational experience in fighting fires.
The
reorganization resulted in the plaintiff’s demotion and she filed
suit alleging gender discrimination based on (1) denying her the
Chief position, (2) denying her the Deputy Chief position, and
(3) demoting her to Lieutenant.
The court remanded the issue of
promotion back to the trial court to hear evidence based on
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plaintiff’s claim of violation of her fourteenth amendment rights
pursuant to § 1983.
The court found that the plaintiff had
introduced sufficient evidence, including statements from her
former supervisor, to call in to question the department’s
explanations for its behavior.
The court held that the plaintiff
had produced sufficient evidence undermining the department’s
explanation that a reasonable jury might infer intentional
discrimination in violation of Title VII.
E.
Fisher v. Vassar College, 114 F.3d 1332 (2d Cir. 1997),
involved a tenure decision.
The appellate court, in reversing
the district court finding of age and sex plus marriage
discrimination, held that a finding of discrimination is
reviewable on appeal for clear error.
The plaintiff devoted
about eight years to her family after receiving her Ph.D. degree.
She was hired in a tenure-tract position in 1980 and evaluated
for tenure in the 1984-1985 academic year.
The Biology
Department committee of three men and two women found her
deficient in all four areas of review:
scholarship, teaching,
leadership, and service to Vassar and unanimously voted to deny
tenure.
She was denied tenure at all remaining levels of review.
After rejection of her appeal she left Vassar in 1986.
The court discussed the issue of pretext at great length,
finding that while sometimes an employer’s proffered reason is a
mask for unlawful discrimination, discrimination is not the
reason behind every inaccurate statement.
The court noted other
purposes for hiding reasons, such as back-scratching, logrolling, horse-trading, institutional politics, envy, nepotism,
spite, or personal hostility.
The court also noted that when
there are numerous participants in the decision-making process,
each could have individual reasons for rejecting a plaintiff and
it is likely that some of those may differ from the reason
officially given by the institution.
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The opinion found that when
there are many possible reasons for the false explanation and
illegal discrimination is no more likely a reason than others,
pretext gives only minimal support to a discrimination claim.
The court held that a prevailing plaintiff must show that
the employer’s proffered reasons are a pretext for discrimination
either because the pretext finding itself points to
discrimination or because other evidence points to discrimination
or both.
VI. REDUCING OPPORTUNITY BARRIERS AND AVOIDING
LIABILITY UNDER TITLE VII
A.
Essential to the elimination of opportunity barriers is
a workable nondiscrimination policy which includes strong
language regarding promotions.**
Enforcing such a policy serves at least three purposes:
(1)
provides for an environment where employment actions are based on
legitimate factors, (2) assures compliance with all applicable
laws, and (3) demonstrates a good faith effort to comply with
Title VII under Kolstad, for those employers subject to punitive
damage awards.
B.
With the current trend to "diversify" the workplace with
emphasis on hiring goals and "stepped up"
recruitment efforts, it might be easy to overlook what could be
happening in the area of career advancement.
Administrators should be educated on appropriate methods of
questioning applicants for promotion since the hiring
administrator most often is the source of much of the
circumstantial evidence provided in disparate treatment cases.
They should understand that questions should be related to the
applicant’s ability to perform the functions of the position.
Supervisors should be encouraged to contact Human Resource or
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**For
an extensive list of recommendations regarding nondiscrimination policies in higher education, see MARY ANN CONNELL &
EDWARD N. STONER, II, BURLINGTON, FARAGHER, ONCALE & BEYOND: RECENT
DEVELOPMENTS IN TITLE VII/TITLE IX JURISPRUDENCE (presented at the Law
and Higher Education Mid-Winter Conference).
Equal Opportunity staff with questions about inappropriate
inquiries during the promotion process.
Human Resource and Equal
Opportunity staff should be direct in communicating that some
statements are never appropriate (i.e., “This position is better
for a man because . . .” or “you might not want to take this job
because you have small children.”).
Any statement related to
gender which alludes to its affect on
the applicant’s ability to perform the duties of the position
will likely be interpreted as discriminatory if the applicant is
not selected.
C.
Notwithstanding holdings such as that in Evans which
allude to a powerful inference of nondiscrimination when the
person who initially hires is the decision-maker on promotion.
A
close eye should be kept on departments that cluster women into
particular positions.
Do there appear to be “men’s jobs” and
“women’s jobs”?
D.
Establish a written policy on promotions that includes
information such as which positions may be filled internally,
when advertising may be waived, when additional levels of
approval are required, and other appropriate requirements.
Likewise, department and college requirements for tenure and
promotion should be well articulated and
disseminated to all faculty involved in the process.
Regular
workshops on the tenure and promotion process should be provided
for faculty involved in the process.
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E.
Review the process for hiring top level administrators.
Does your institution regularly select external applicants even
though you have instituted training or development programs which
female employees have successfully completed?
VII. CONCLUSION
The institution’s climate should foster confidence in all
phases of the employment process.
ways.
This can be accomplished two
Opportunity to advance should be the reward for employees
who have demonstrated an ability to perform and who are qualified
to advance.
Authority to make hiring decisions should be
extended to those individuals who understand that employment
decisions should be based on performance, merit and
qualifications.
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