Individual Disparate Treatment
Discrimination
Chapter 3
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003)
Introduction
Title VII of the Civil Rights Act of
1964
Age Discrimination
in Employment Act of
1967
Civil War
Reconstruction
Statutes
Disparate Treatment
Discrimination
Rehabilitation Act of 1973
The Meaning of
Discriminatory Intent
Circumstantial
Evidence of
Discriminatory Intent
Americans with
Disabilities Act of 1990
Direct Evidence of
Discriminatory Intent
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003)
The Present and Future
of Individual Disparate
Treatment Law
Section 703(a)
• It shall be an unlawful employment practice for an employer —
(1) to fail or refuse to hire or to discharge any individual, or otherwise to
discriminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such
individual's race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for
employment in any way which would deprive or tend to deprive any
individual of employment opportunities or otherwise adversely affect
his status as an employee, because of such individual's race, color,
religion, sex, or national origin.
The Meaning of
Discriminatory Intent
Circumstantial
Evidence of
Discriminatory Intent
Direct Evidence of
Discriminatory Intent
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003)
The Present and Future
of Individual Disparate
Treatment Law
§ 1981
(a) All persons within the jurisdiction of the United States shall have the
same right in every State and Territory to make and enforce contracts,
to sue, be parties, give evidence, and to the full and equal benefit of all
laws and proceedings for the security of persons and property as is
enjoyed by white citizens, and shall be subject to like punishments,
pains, penalties, taxes, licenses, and exactions of every kind, and to no
other.
(b) For purposes of this section, the term "make and enforce contracts"
includes the making, performance, modification, and termination of
contracts, and the enjoyment of all benefits, privileges, terms, and
conditions of the contractual relationship.
The Meaning of
Discriminatory Intent
Circumstantial
Evidence of
Discriminatory Intent
Direct Evidence of
Discriminatory Intent
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003)
The Present and Future
of Individual Disparate
Treatment Law
Discriminatory Intent
• Slack v. Havens (9th Cir. 1975)





Pohasky = supervisor = employer
Pohasky’s statements admit discriminatory motive
Statements = Prejudice
Prejudice in action = discrimination
What if he hadn’t said anything?
The Meaning of
Discriminatory Intent
Circumstantial
Evidence of
Discriminatory Intent
Direct Evidence of
Discriminatory Intent
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003)
The Present and Future
of Individual Disparate
Treatment Law
Slack v. Havens
• Pohasky might have acted out of animus
• But he might have been acting from stereotyping:



Blacks clean better
Women put their families ahead of their jobs
Mormons are too staid to be fun
• Stereotypes might be “true” – of the group

Women live longer than men
• Or they might be false

Women are worse drivers than men
• Either way, to act on a stereotype essentializes the
individual merely as a member of the group
The Meaning of
Discriminatory Intent
Circumstantial
Evidence of
Discriminatory Intent
Direct Evidence of
Discriminatory Intent
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003)
The Present and Future
of Individual Disparate
Treatment Law
Gender Stereotypes
•
•
•
•
•
•
•
•
Aggressive
Ambitious
Unemotional
Skillful
Loud
Messy
Athletic
Math and
Science
Oriented
The Meaning of
Discriminatory Intent
Sugar and spice and everything nice,
That's what little girls are made of.
Snips and snails and puppydog tails,
That's what little boys are made of.
Circumstantial
Evidence of
Discriminatory Intent
Direct Evidence of
Discriminatory Intent
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003)
•
•
•
•
•
•
•
Submissive
Emotional
Quiet
Neat/Clean
Clumsy
Artsy
Nurturing
The Present and Future
of Individual Disparate
Treatment Law
Race Stereotypes
• Hard workers
• Good at math
• Self-effacing
• Rich
• Pushy
• Good athletes
• Into rap music
• Unmotivated
• Family-oriented
• Immigrant,
maybe illegal
• Tiempo Latino
The Meaning of
Discriminatory Intent
Circumstantial
Evidence of
Discriminatory Intent
Direct Evidence of
Discriminatory Intent
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003)
The Present and Future
of Individual Disparate
Treatment Law
Hazen Paper Co. v. Biggins
Disparate Treatment v. Disparate Impact

Disparate Treatment – intentionally treating individuals
differently based on race, color, religion, age, etc…


Available under ADEA and other antidiscrimination statutes
Disparate Impact – Facially neutral treatment,
unjustifiably and disproportionately affecting a
particular group

Available under Title VII, not under § 1981, and maybe not
under the ADEA
The Meaning of
Discriminatory Intent
Circumstantial
Evidence of
Discriminatory Intent
Direct Evidence of
Discriminatory Intent
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003)
The Present and Future
of Individual Disparate
Treatment Law
Hazen Paper Co. v. Biggins

Is it disparate treatment if a factor correlates with age?


Age per se v. Years of service
Overqualified
N.B. Such a factor should have a disparate impact




Intent  mere correlation
Intent = motive
Intent = conscious stereotyping/rational discrimination
Intent = unconscious stereotyping?
The Meaning of
Discriminatory Intent
Circumstantial
Evidence of
Discriminatory Intent
Direct Evidence of
Discriminatory Intent
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003)
The Present and Future
of Individual Disparate
Treatment Law
Age Stereotypes
•
•
•
•
•
•
Reduced energy and enthusiasm
Reduced physical abilities
Resistant to change
Can’t relate to younger individuals
Conservative
Forgetful
The Meaning of
Discriminatory Intent
Circumstantial
Evidence of
Discriminatory Intent
Direct Evidence of
Discriminatory Intent
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003)
The Present and Future
of Individual Disparate
Treatment Law
Employer Opportunism and the ADEA
Young, medium
skill, and
underpaid
Young, medium
skill, and
underpaid
High
experience;
“That raise was
so overdue!”
High experience;
overpaid; “I’ll
never find a job
that pays like
this”
The Meaning of
Discriminatory Intent
Circumstantial
Evidence of
Discriminatory Intent
Direct Evidence of
Discriminatory Intent
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003)
The Present and Future
of Individual Disparate
Treatment Law
Individual
Disparate
Treatment
Systemic
Disparate
Impact
Biggins v. Hazen
Paper
Slacks v. Havens
Systemic
Disparate
Treatment
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003)
Animus
“Rational”
Discrimination
Semi-Conscious
Unconscious
Workplace Structures
Workplace Cultures
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003)
Circumstantial Evidence of
Discriminatory Intent
•
McDonnell Douglas Corp v. Green (1973)

Title VII claims

Step 1: Claimant - Prima facie case of racial discrimination
i.
ii.
iii.
iv.


Belongs to a racial minority
Applied and was qualified
Despite qualifications – rejected
Position remained open
Step 2: Respondent – Articulate legitimate reasons
Step 3: Claimant – Prove pretext
The Meaning of
Discriminatory Intent
Circumstantial Evidence
of Discriminatory Intent
Direct Evidence of
Discriminatory Intent
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003)
The Present and Future
of Individual Disparate
Treatment Law
Plaintiff’s Prima Facie Case
•
•
•
•
•
What does it mean to “apply”?
Does plaintiff need to show basic, equal, or
superior qualifications?
What is a rejection and when does it occur?
What if the position doesn’t remain open?
What if plaintiff is replaced by someone of the
same class?
The Meaning of
Discriminatory Intent
Circumstantial Evidence
of Discriminatory Intent
Direct Evidence of
Discriminatory Intent
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003)
The Present and Future
of Individual Disparate
Treatment Law
And if a discharge is challenged?
McDonnell Douglas “prima
facie” formulation?
Individual Discharges
Course of Reduction
Discharges
The Meaning of
Discriminatory Intent
Circumstantial Evidence
of Discriminatory Intent
Direct Evidence of
Discriminatory Intent
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003)
The Present and Future
of Individual Disparate
Treatment Law
An Aside: Adverse Employment Action
•
•
•
Is materiality a requirement to show a prima facie case?
Or is any adverse action by the employer sufficient?
If material, what suffices?




Asking female applicants family-oriented questions
Average evaluations
Lower bonuses
Not letting women work a night shift (when pay is same as day)
The Meaning of
Discriminatory Intent
Circumstantial Evidence
of Discriminatory Intent
Direct Evidence of
Discriminatory Intent
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003)
The Present and Future
of Individual Disparate
Treatment Law
Summing Up McDonnell Douglas
1. Service: Plaintiff proves prima facie case (Chapter 3, Part C 1)
2. Return: Defendant rebuts discriminatory intent (Chapter 3, Part C 2)
3. Point: Plaintiff proves defendant’s reason are pretextual (Chapter 3, Part C 2)
The Meaning of
Discriminatory Intent
Circumstantial Evidence
of Discriminatory Intent
Direct Evidence of
Discriminatory Intent
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003)
The Present and Future
of Individual Disparate
Treatment Law
Defendant’s Rebuttal Case
“Articulate a legitimate, nondiscriminatory reason”

A burden of production only




Defendant need not prove its reason is factually true
Defendant need not prove its reason motivated the decision
What does Biggins say about “legitimate”?
But Defendant must put its reason into evidence

Argument isn’t enough; defendant must put in proof
The Meaning of
Discriminatory Intent
Circumstantial Evidence
of Discriminatory Intent
Direct Evidence of
Discriminatory Intent
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003)
The Present and Future
of Individual Disparate
Treatment Law
Plaintiff’s Proof of Pretext





Plaintiff must prove defendant’s reason a pretext
Plaintiff must prove a pretext for discrimination
The presumption raised by the prima facie case “drops
from the case” when defendant carries its burden
But the proof that makes up the prima facie case remains
Can a reasonable jury infer discrimination from that
proof plus the proof of pretext?
The Meaning of
Discriminatory Intent
Circumstantial Evidence
of Discriminatory Intent
Direct Evidence of
Discriminatory Intent
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003)
The Present and Future
of Individual Disparate
Treatment Law
Testing Plaintiff’s Case
•
Defendant’s Challenges:





•
Rule 12(b)(6)?
Summary Judgment (Rule 56 (b))?
Judgment as a Matter as Law (Rule 50 (a))?
JML (“Directed Verdict”) at close of plaintiff’s case
JML (“J.N.O.V.”) after jury verdict
Judge or Jury

1991 Civil Rights Act added right to a jury trial
The Meaning of
Discriminatory Intent
Circumstantial Evidence
of Discriminatory Intent
Direct Evidence of
Discriminatory Intent
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003)
The Present and Future
of Individual Disparate
Treatment Law
McDonald v. Santa Fe (1976)
• 3 employees



2 white, one black;
All participate in a theft;
But only 2 get fired – both the whites
• Why not fire all three?
• Aren’t employers allowed to fire employees who
steal?
The Meaning of
Discriminatory Intent
Circumstantial Evidence
of Discriminatory Intent
Direct Evidence of
Discriminatory Intent
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003)
The Present and Future
of Individual Disparate
Treatment Law
McDonald v. Santa Fe Trail (Continued)
•
•
•
•
Is discrimination against whites actionable under Title VII?
Is discrimination against males actionable under Title VII?
Is discrimination against whites actionable under §1981?
If everyone can sue for race (or gender) discrimination, is atwill gone?
• Or may any reason be okay if equally applied:


Theft may be sufficient grounds for discharge, but is it “applied, alike
to members of all races?”
Good reason, bad reason or no reason remains the law – if applied
equally
The Meaning of
Discriminatory Intent
Circumstantial Evidence
of Discriminatory Intent
Direct Evidence of
Discriminatory Intent
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003)
The Present and Future
of Individual Disparate
Treatment Law
McDonald v. Santa Fe (continued)
• Title VII proscribes bad cause, but does not require
good cause;
• Thus, it encourages, but does not require,
meritocracy

No Capricorns need apply


not good cause, but not bad cause either
No baby boomers need apply

not good cause, and is bad cause
The Meaning of
Discriminatory Intent
Circumstantial Evidence
of Discriminatory Intent
Direct Evidence of
Discriminatory Intent
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003)
The Present and Future
of Individual Disparate
Treatment Law
Race
• What is Race?

Nationalities?

E.g.
Are Puerto Ricans a race or are they Latino?
Are Jews a race or a religion?
Are Jordanians a different race than Iranians?

Biology?



Caucasoid
Mongoloid
Negroid
The Meaning of
Discriminatory Intent
Circumstantial Evidence
of Discriminatory Intent
Direct Evidence of
Discriminatory Intent
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003)
The Present and Future
of Individual Disparate
Treatment Law
“Reverse” Discrimination
•
•
“Reverse discrimination” is illegal
Except pursuant to a valid affirmative action plan?

•
If there is an affirmative action plan, is it easier or harder to make
out a claim?
Prima facie case for reverse discrimination:

In a minority dominated business
1.

McDonnell Douglas test
In a White dominated business
1.
2.
3.
“background circumstances?”
Admissions
Affirmative action/diversity statements?
The Meaning of
Discriminatory Intent
Circumstantial Evidence
of Discriminatory Intent
Direct Evidence of
Discriminatory Intent
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003)
The Present and Future
of Individual Disparate
Treatment Law
ADEA and “Reverse” Age
Discrimination
You’ll
Um… never
I can
live
beatwith
my
ADEA
that!
Style!
ADEA
Fine,
Everyone
everyone
over
40 is
under 40 is
FIRED!!!!
FIRED!
The Meaning of
Discriminatory Intent
Circumstantial Evidence
of Discriminatory Intent
Direct Evidence of
Discriminatory Intent
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003)
The Present and Future
of Individual Disparate
Treatment Law
Reverse Age Discrimination
• One of these things is not like the other…


Favoring 45 year-olds over 60 year-olds
Favoring 60 year-olds over 45 year-olds


Cline v. General Dynamics
Why might this be more acceptable?
The Meaning of
Discriminatory Intent
Circumstantial Evidence
of Discriminatory Intent
Direct Evidence of
Discriminatory Intent
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003)
The Present and Future
of Individual Disparate
Treatment Law
Title VII v. § 1981
• § 1981




No special requirements for filing with the EEOC
No damages cap
Not limited to “employment”
Statute of limitations might be longer or shorter


State general tort statute governs
Except that four year federal default statute sometimes applies
The Meaning of
Discriminatory Intent
Circumstantial Evidence
of Discriminatory Intent
Direct Evidence of
Discriminatory Intent
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003)
The Present and Future
of Individual Disparate
Treatment Law
Where Does the Union Fit In?
Non-Members
UNION
Members
The Meaning of
Discriminatory Intent
Circumstantial Evidence
of Discriminatory Intent
Direct Evidence of
Discriminatory Intent
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003)
The Present and Future
of Individual Disparate
Treatment Law
Back to McDonnell Douglas
1. Service: Plaintiff proves prima facie case (Chapter 3, Part C 1)
2. Return: Defendant rebuts discriminatory intent (Chapter 3, Part C 2)
3. Point: Plaintiff proves defendant’s reason are pretextual (Chapter 3, Part C 2)
The Meaning of
Discriminatory Intent
Circumstantial Evidence
of Discriminatory Intent
Direct Evidence of
Discriminatory Intent
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003)
The Present and Future
of Individual Disparate
Treatment Law
Patterson v. McClean Credit Union (1989)
• Does Patterson have to prove she is more qualified?
• Did she prove a McDonnell Douglas prima facie case?
• Did defendant rebut the prima facie case?


Better qualified people were promoted?
Or, at least, defendant thought they were better qualified?
• Plaintiff had the opportunity to prove pretext

What was wrong with the trial court’s approach to pretext?
The Meaning of
Discriminatory Intent
Circumstantial Evidence
of Discriminatory Intent
Direct Evidence of
Discriminatory Intent
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003)
The Present and Future
of Individual Disparate
Treatment Law
Revisiting “Qualifications”
• So what does “Qualifications” mean?



At the prima facie stage
At the rebuttal stage
At the proof of pretext stage
The Meaning of
Discriminatory Intent
Circumstantial Evidence
of Discriminatory Intent




Equal?
Superior?
Substantially?
Clearly?
Direct Evidence of
Discriminatory Intent
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003)
The Present and Future
of Individual Disparate
Treatment Law
Revisiting Rebuttal
• The Defendant only need put in evidence of
nondiscriminatory reasons.

“Legitimate” has no independent meaning
Lawful
Unlawful
Discriminatory
Non-discriminatory
The Meaning of
Discriminatory Intent
Circumstantial Evidence
of Discriminatory Intent
Direct Evidence of
Discriminatory Intent
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003)
The Present and Future
of Individual Disparate
Treatment Law
Revisiting Pretext
• Proving pretext



Reason(s) has no basis in fact
Reason(s) did not actually motivate defendant
Reason(s) were insufficient for action taken
• Are objectively false reasons pretextual if
defendant subjectively believed them true?

But if objectively false, how will jury find the
defendant was in good faith?
The Meaning of
Discriminatory Intent
Circumstantial Evidence
of Discriminatory Intent
Direct Evidence of
Discriminatory Intent
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003)
The Present and Future
of Individual Disparate
Treatment Law
Issue of Material Fact
• Are any of these sufficient circumstantial evidence
to create an issue of material fact for a jury?



Not everyone in the desired position has that superior
qualification
General discrimination with respect to minorities
Treatment was unique to plaintiff
The Meaning of
Discriminatory Intent
Circumstantial Evidence
of Discriminatory Intent
Direct Evidence of
Discriminatory Intent
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003)
The Present and Future
of Individual Disparate
Treatment Law
Post McClean
Title VII
McDonnel
Douglas /
Burdine
§ 1981
The Meaning of
Discriminatory Intent
ADEA
Circumstantial Evidence
of Discriminatory Intent
Direct Evidence of
Discriminatory Intent
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003)
The Present and Future
of Individual Disparate
Treatment Law
Investigation vs. Discovery
• Investigative road blocks




Privilege
Costly discovery
Protective orders
Legal ethics
• Legal accommodation

Court balancing of interests
The Meaning of
Discriminatory Intent
Circumstantial Evidence
of Discriminatory Intent
Direct Evidence of
Discriminatory Intent
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003)
The Present and Future
of Individual Disparate
Treatment Law
Discovering the Truth
• Court balancing of interests

Plaintiff’s interests



Obtaining information
Minimizing costs
Defendant’s interests


Protect privileged information
Avoid binding statements by employees
• Court analysis is individual employee specific
The Meaning of
Discriminatory Intent
Circumstantial Evidence
of Discriminatory Intent
Direct Evidence of
Discriminatory Intent
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003)
The Present and Future
of Individual Disparate
Treatment Law
St. Mary’s Honor Center v. Hicks (1993)
• Where did things go wrong for Hicks?
• McDonnell Douglas / Burdine Schema
 Prima facie case 
 Rebuttal 
? Proof of pretext ?
The Meaning of
Discriminatory Intent
Circumstantial Evidence
of Discriminatory Intent
Direct Evidence of
Discriminatory Intent
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003)
The Present and Future
of Individual Disparate
Treatment Law
St. Mary’s Honor Center v. Hicks (1993)
(Continued)
•
•
•
•
The plaintiff proves the prima facie case…
The defendant proffers an explanation
The judge finds explanation pretext
So why not judgment for plaintiff?


Presumptions DO NOT shift the burden of proof in
Title VII cases.
The judge did not find the reason a pretext for
discrimination
The Meaning of
Discriminatory Intent
Circumstantial Evidence
of Discriminatory Intent
Direct Evidence of
Discriminatory Intent
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003)
The Present and Future
of Individual Disparate
Treatment Law
St. Mary’s Honor Center v. Hicks (Dissent)
• Is the plaintiff’s burden a license for defendants to
lie?
• Silence (is not golden? is lying golden?)
Scenario 1
Scenario 2
• Prima facie case
•  is silent
• Judgment as a matter of
law
The Meaning of
Discriminatory Intent
Circumstantial Evidence
of Discriminatory Intent
•
•
•
•
Prima facie case
 offers legitimate reasons
 disproves them
No judgment as a matter of
law
Direct Evidence of
Discriminatory Intent
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003)
The Present and Future
of Individual Disparate
Treatment Law
St. Mary’s Honor Center v. Hicks (Dissent)
• Does the presumption created by the prima facie
case disappear after production of proffered but
false reasons?
• If the  is not bound to the proffered reason, what
is point of requiring it to give one?
The Meaning of
Discriminatory Intent
Circumstantial Evidence
of Discriminatory Intent
Direct Evidence of
Discriminatory Intent
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003)
The Present and Future
of Individual Disparate
Treatment Law
Reeves v. Sanderson Plumbing (2000)
• Trial





Plaintiff’s prima facie case established
Defendant’s rebuttal presented
Plaintiff rebuts
Jury finds for plaintiff and awards $$$
5th Circuit overturns the verdict
A reasonable jury could have found defendant’s
explanation pretext

But not sufficient evidence that the real reason
was discriminatory

The Meaning of
Discriminatory Intent
Circumstantial Evidence
of Discriminatory Intent
Direct Evidence of
Discriminatory Intent
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003)
The Present and Future
of Individual Disparate
Treatment Law
Reeves v. Sanderson Plumbing (Continued)
• Supreme Court reverses:
Plaintiff’s prima facie case
+
Sufficient proof of pretext

WILL USUALLY
allow (not require) trier of fact to find discriminatory intent
The Meaning of
Discriminatory Intent
Circumstantial Evidence
of Discriminatory Intent
Direct Evidence of
Discriminatory Intent
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003)
The Present and Future
of Individual Disparate
Treatment Law
Aftermath of Hicks and Reeves
• Pretext Only vs. Pretext + vs. Pretext Sufficient
• Less slicing and dicing of plaintiff’s proof
• But can the jury infer discriminatory intent from (1) proof
that makes up plaintiff’s prima facie case + (2) proof that
defendant’s nondiscriminatory reason is a pretext
• If plaintiff can’t prove pretext, she loses
• If she can prove pretext, she doesn’t necessarily win
• But she should normally get to the jury
• The jury may infer from defendant’s production of a false
reason that it did so to conceal a true discriminatory reason
The Meaning of
Discriminatory Intent
Circumstantial Evidence
of Discriminatory Intent
Direct Evidence of
Discriminatory Intent
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003)
The Present and Future
of Individual Disparate
Treatment Law
Price Waterhouse v. Hopkins (1989)
(Plurality)
• Title VII – “because of such individual’s … sex”

Does “because of ” = “but-for causation?”



What is the difference?
How does this affect “mixed motive” situations?
How much of a cause does it need to be?
The Meaning of
Discriminatory Intent
Circumstantial Evidence of
Discriminatory Intent
Direct Evidence of
Discriminatory Intent
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003)
The Present and Future
of Individual Disparate
Treatment Law
Price Waterhouse v. Hopkins (1989)
(Plurality)
• Burdens of proof

Title VII protections of employers’ freedom of choice




Plaintiff – Gender played a motivating factor
Defendant – Would have decided the same regardless
How does this reconcile with Burdine?
Characterize the defendant’s burden
Restrictions
on
Employer
Freedom of
Choice
The Meaning of
Discriminatory Intent
Circumstantial Evidence of
Discriminatory Intent
Direct Evidence of
Discriminatory Intent
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003)
The Present and Future
of Individual Disparate
Treatment Law
Price Waterhouse v. Hopkins (1989)
(Plurality)
• Burdine v. Price Waterhouse (Pretext v. Mixed motive)

Burdine/Pretext



Who bears the burden: The Plaintiff
What is at issue: The actual reason
Price Waterhouse

Who bears the burden and for what:
Pretext
The Plaintiff – Substantial motivating factor
Defendant - Hypothetically,
would the same decision have been
Mixed
made regardless
Motive
The Meaning of
Discriminatory Intent
Circumstantial Evidence of
Discriminatory Intent
Direct Evidence of
Discriminatory Intent
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003)
The Present and Future
of Individual Disparate
Treatment Law
Price Waterhouse v. Hopkins (1989)
(Plurality)
• Proof


Plaintiff - How can motivating stereotypes be proven?
Defendant – Objective evidence of likelihood of the
same outcome using legitimate reasons



The same decision would be justified; Or…
The same decision would have resulted;
Why is “clear and convincing evidence”
not the standard?
The Meaning of
Discriminatory Intent
Circumstantial Evidence of
Discriminatory Intent
Direct Evidence of
Discriminatory Intent
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003)
The Present and Future
of Individual Disparate
Treatment Law
Price Waterhouse v. Hopkins (1989)
(Plurality)
• Justice White, Concurring in the judgment


Unlawful motive was a substantial factor in the adverse
employment action. See Mt. Healthy v. Doyle
Objective evidence by employer not necessary
The Meaning of
Discriminatory Intent
Circumstantial Evidence of
Discriminatory Intent
Direct Evidence of
Discriminatory Intent
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003)
The Present and Future
of Individual Disparate
Treatment Law
Price Waterhouse v. Hopkins (1989)
(Justice O’Connor, Concurring)
• Justice O’Connor, Concurring in the judgment



Agrees burden should shift to employer to show by a
preponderance of the evidence
“But-for” = “Because of ”
Where a breach has been established


Burden is on the defendant; However,
ONLY by a showing of “DIRECT evidence that an illegitimate
criterion was a substantial factor in the decision.”
How is this different than the plurality
Why, and how, is this different than Burdine?
The Meaning of
Discriminatory Intent
Circumstantial Evidence of
Discriminatory Intent
Direct Evidence of
Discriminatory Intent
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003)
The Present and Future
of Individual Disparate
Treatment Law
Price Waterhouse v. Hopkins (1989)
(Justice O’Connor, Concurring)

1) MD prima facie case
2) Direct Evidence

3) Legitimate reasons
4) Selects Framework
Price
Waterhouse
Threshold
Plaintiff’s
case
Price
Waterhous
e
Framework
McDonnell
Douglas
The Meaning of
Discriminatory Intent
Circumstantial Evidence of
Discriminatory Intent
Direct Evidence of
Discriminatory Intent
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003)
The Present and Future
of Individual Disparate
Treatment Law
Aftermath of Price Waterhouse
• What is the relationship between PW & MD?
• Is direct evidence required to invoke PW?
• Issues of statements as direct evidence


What was actually said?
Does the comment really reflect an illegitimate reason?


How does perception relate to intent? (E.g. “niggardly”)
Do we mean everything we say?
• Confusion as to how much evidence is needed to be direct
and to shift into a burden-shifting framework?

Can a lot of circumstantial evidence be enough (direct)?
The Meaning of
Discriminatory Intent
Circumstantial Evidence of
Discriminatory Intent
Direct Evidence of
Discriminatory Intent
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003)
The Present and Future
of Individual Disparate
Treatment Law
The Civil Rights Act of 1991
• § 703(m), 42 U.S.C.S. § 2000e-2(m) (2003)

“an unlawful employment practice is established when
the complaining party demonstrates that race, color,
religion, sex, or national origin was a motivating
factor for any employment practice, even though
other factors also motivated the practice.”
The Meaning of
Discriminatory Intent
Circumstantial Evidence of
Discriminatory Intent
Direct Evidence of
Discriminatory Intent
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003)
The Present and Future
of Individual Disparate
Treatment Law
The Civil Rights Act of 1991
• § 703(m), 42 U.S.C.S. § 2000e-5(g) (2003)

(B) On a claim in which an individual proves a violation
under section 703(m) [42 USCS § 2000e-2(m)] and a
respondent demonstrates that the respondent would
have taken the same action in the absence of the
impermissible motivating factor, the court-(i) may grant declaratory relief, injunctive relief (except as
provided in clause (ii)), and attorney's fees and costs
demonstrated to be directly attributable only to the pursuit of a
claim under section 703(m) § 42 USCS § 2000e-2(m)]; and
(ii) shall not award damages or issue an order requiring any
admission, reinstatement, hiring, promotion, or payment,
described in subparagraph (A).
The Meaning of
Discriminatory Intent
Circumstantial Evidence of
Discriminatory Intent
Direct Evidence of
Discriminatory Intent
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003)
The Present and Future
of Individual Disparate
Treatment Law
New Limitations on Employer
Liability
• § 703(m), 42 U.S.C.S. § 2000e-5(g) (2003)

(B) On a claim in which an individual proves a violation
under section 703(m) [42 USCS § 2000e-2(m)] and a
respondent demonstrates that the respondent would
have taken the same action in the absence of the
impermissible motivating factor, the court-(i) may grant declaratory relief, injunctive relief (except as
provided in clause (ii)), and attorney's fees and costs
demonstrated to be directly attributable only to the pursuit of a
claim under section 703(m) § 42 USCS § 2000e-2(m)]; and
(ii) shall not award damages or issue an order requiring any
admission, reinstatement, hiring, promotion, or payment,
described in subparagraph (A).
The Meaning of
Discriminatory Intent
Circumstantial Evidence of
Discriminatory Intent
Direct Evidence of
Discriminatory Intent
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003)
The Present and Future
of Individual Disparate
Treatment Law
New Limitations on Employer
Liability
• § 703(m), 42 U.S.C.S. § 2000e-5(g) (2003)

(B) On a claim in which an individual proves a violation
under section 703(m) [42 USCS § 2000e-2(m)] and a
respondent demonstrates that the respondent would
have taken the same action in the absence of the
impermissible motivating factor, the court-(i) may grant declaratory relief, injunctive relief (except as
provided in clause (ii)), and attorney's fees and costs
demonstrated to be directly attributable only to the pursuit of a
claim under section 703(m) § 42 USCS § 2000e-2(m)]; and
(ii) shall not award damages or issue an order requiring any
admission, reinstatement, hiring, promotion, or payment,
described in subparagraph (A).
The Meaning of
Discriminatory Intent
Circumstantial Evidence of
Discriminatory Intent
Direct Evidence of
Discriminatory Intent
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003)
The Present and Future
of Individual Disparate
Treatment Law
The Civil Rights Act of 1991
• § 1981 was not amended
• ADEA was not amended
• Does McDonnell Douglas or Price Waterhouse
analysis apply to these?
The Meaning of
Discriminatory Intent
Circumstantial Evidence of
Discriminatory Intent
Direct Evidence of
Discriminatory Intent
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003)
The Present and Future
of Individual Disparate
Treatment Law
All For One, And One For All?
• How should multiple decision makers be treated?



Collegial Structure
Hierarchical Structures
Combination
• What role would discriminatory contributors need
to play to impute the whole?
The Meaning of
Discriminatory Intent
Circumstantial Evidence of
Discriminatory Intent
Direct Evidence of
Discriminatory Intent
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003)
The Present and Future
of Individual Disparate
Treatment Law
§ 1983
• Ku Klux Klan Act of 1871




Provides a remedy for violation of “rights, privileges,
or immunities secured by the Constitution and laws”
Applies only to state action
Remedial advantages eliminated by The Civil Rights
Act of 1991
Disparate Impact theory not available
The Meaning of
Discriminatory Intent
Circumstantial Evidence of
Discriminatory Intent
Direct Evidence of
Discriminatory Intent
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003)
The Present and Future
of Individual Disparate
Treatment Law
Title VII, § 1981, § 1983
•
•
•
•
Is §1983 still useful?
Are Title VII and §1983 mutually exclusive?
How to choose between § 1981 and § 1983?
How does 11th Amendment immunity affect §
1983
• Who gets absolute or qualified immunity?
The Meaning of
Discriminatory Intent
Circumstantial Evidence of
Discriminatory Intent
Direct Evidence of
Discriminatory Intent
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003)
The Present and Future
of Individual Disparate
Treatment Law
Costa v. Desert Palace, Inc. (2003)
• Title VII Statutory Framework

Price waterhouse



The Civil Rights Act of 1991



An employer who considers both gender and illegitimate factors at
decision time, made it “because of” sex.
Employer may have “same decision affirmative defense
A prohibited motivating factor is unlawful regardless of defense
Solves burden shifting issues
Direct Evidence
The Meaning of
Discriminatory Intent
Circumstantial Evidence of
Discriminatory Intent
Direct Evidence of
Discriminatory Intent
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003)
Present and Future of
Individual Disparate
Treatment Law
Costa v. Desert Palace, Inc. (2003)
• Direct Evidence



Classic approach
Animus Plus position (Majority view)
Animus position
• Disparities between and within Circuits
• This Court


Return to the language of the statute
No special evidentiary standard

Proof by a preponderance of the evidence of an illegitimate
motivating factor
The Meaning of
Discriminatory Intent
Circumstantial Evidence of
Discriminatory Intent
Direct Evidence of
Discriminatory Intent
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003)
Present and Future of
Individual Disparate
Treatment Law
Costa v. Desert Palace, Inc. (2003)
• The Framework for Proving a Title VII Violation

McDonnell Douglas





Primarily a tool for plaintiff’s in the summary judgment phase
Requirements of a prima facie case are not intended to be ritualistic
Plaintiffs can succeed by persuading the Court that a discriminatory
reason motivated an employer action, or by proving the employer’s
proffered reason is pretext
The plaintiff always bears the burden of proof
This is not the exclusive method of proof in such cases
The Meaning of
Discriminatory Intent
Circumstantial Evidence of
Discriminatory Intent
Direct Evidence of
Discriminatory Intent
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003)
Present and Future of
Individual Disparate
Treatment Law
Costa v. Desert Palace, Inc. (2003)
• Number of motives affects jury instructions

Only reasonable conclusion is one motive




Jury receives “Because of” instruction
If the employee succeeds then full Title VII remedies are avialable
No “same decision” defense available
Evidence support two or more motives

Jury receives “motivating factor” instruction
If they answer in the affirmative the burden shifts
Employer may have “same decision” defense
If the employer succeeds then damages are limited to:

The Meaning of
Discriminatory Intent
Attorney’s fees, declaratory relief, and order prohibiting future
discrimination
Circumstantial Evidence of
Discriminatory Intent
Direct Evidence of
Discriminatory Intent
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003)
Present and Future of
Individual Disparate
Treatment Law
Individual Disparate Treatment Law
• Did Costa get it right?
• What is the relationship
§ 1981
Title VII
ADEA
§ 1983
Mixed
Motive
Circumstantial
Evidence
Pre-trial
The Meaning of
Discriminatory Intent
Direct
Evidenc
e
Trial
Circumstantial Evidence of
Discriminatory Intent
Pretext
Burden
Shifting
Direct Evidence of
Discriminatory Intent
Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003)
“Becaus
e of”
Present and Future of
Individual Disparate
Treatment Law