~ Basics of Disparate Treatment ~
What is disparate treatment?
•
Likely the most apparent form of discrimination outlawed by Title
VII; to NOT use protected group status in making personnel
decisions
The role of intent: "Disparate treatment ... is the most easily
understood type of discrimination. The employer simply treats some
people less favorably than others because of their race, color, religion,
sex, or national origin. Proof of discriminatory motive is critical,
although it can in some situations be inferred from the mere fact of
differences in treatment.” Teamsters v. United States 431 U.S. 324, 33536 (1977)
How do you know if disparate treatment exists?
~ Disparate Treatment Process ~
Step 1: Challenger must establish a prima facie case
(presents presumptive evidence)
Step 2: The company must articulate that a legitimate,
nondiscriminatory reason exists for the rejection of the
challenger (burden of production, not prove)
Step 3: The challenger must prove that the organization's reason for their
rejection is a pretext for discrimination
McDonnell Douglas Corp. v. Green (1973)
Challenger Burden (Step 1): To establish a prima facie case of racial
discrimination, a complainant must:
1) Belong to a racial minority
>>> Green was Black
2) Apply and be qualified for the job in which the employer
was seeking applications
>>> Green applied for a mechanic position and his past work for
the company was “satisfactory”
3) Be rejected for the job in question despite being qualified
>>> Green was not hired
4) After being rejected, the position must remain open and
the company has to continue to seek applicants from
person’s of the complainant’s qualifications
>>> Company continued hiring applicants
Disparate Treatment
Company Defense (Step 2)
• The employer needs to only “articulate some legitimate,
nondiscriminatory reason for the employee’s rejection”
>>> Company stated that Green was rejected because of his
participation in an illegal “stall-in and “lock-in” against the
organization
Challenger Can Demonstrate Pretext (Step 3)
“ ... the plaintiff must then have an opportunity to prove
by a preponderance of the evidence that the legitimate
reason offered by the defendant were not its true reasons
but were a pretext for discrimination.”
How might this be done (with what information)?
Company’s treatment of challenger during his prior employment
(e.g., to his legal civil rights conduct)
Organization’s policies/practices regarding minority employment
(e.g., prior evidence of a pattern of discrimination – statistics)
Evidence that Whites involved in the illegal activities were hired
Texas Department of Community Affairs v.
Burdine (1981)
Brief Facts: Sued for sex discrimination in promotion and termination decisions
District Ct. --- No gender bias in promotion/termination decisions; Evidence
based on testimony from supervisor that:
• Not as qualified as person promoted
• Did not work well with some others
Court of Appeals: --1) Company needs to prove the use of a non-discriminatory reason with a
preponderance of evidence
2) Objective evidence must be presented that the person hired/promoted
possessed the highest qualifications
“ ... to satisfy this burden, the defendant “must prove that those he
hired ... were somehow better qualified than was plaintiff, in other
words, comparative evidence is needed.”
Supreme Court Decision in Burdine
1) Defendant burden is one of production/articulation (not
persuasion)
We have stated consistently that the employee’s prima
facie case ... will be rebutted if the employer articulates
lawful reasons for the action, ... the employer need only
produce admissible evidence which would allow the trier of
fact rationally to conclude that the employment decision
had not been motivated by discriminatory animus
... the defendant’s explanation of its legitimate reasons
must be clear and reasonably specific (e.g., so challenger
can have an opportunity to prove pretext)
Supreme Court Decision in Burdine (cont.)
2) Defendant does not have to prove that the plaintiff’s
qualifications are less than the person hired
The views of the Court of Appeals can be read ... as
requiring the employer to hire the minority or female
applicant whenever that person’s objective qualifications
were equal to those of a white male applicant. But Title
VII does not obligate an employer to accord this
preference
3) Plaintiff must show direct or indirect evidence that the
defendant’s reason(s) were a pretext for discrimination
Two Similar Cases Using Indirect (Circumstantial) Evidence
St. Mary’s v. Hicks (Hicks loses) Judge decision
Reeves v. Sanderson Plumbing (Reeves wins) Jury decision
Company hired 3 people in
their 30s to fill Reeves
position; another supervisor
with a similar record as
Reeves was not fired
St. Mary’s Honor Center v. Hicks (1993
[Hicks presented strong indirect evidence presented
and lost]
Brief Facts: After reorganization, Hicks
• Received several disciplinary actions from his new supervisor
(before his performance was satisfactory)
• Was suspended (and later fired) for rules violations by his
subordinates (failing to inadequately investigate a brawl between
inmates, not ensuring his subordinates entered vehicle use in log
book, arguing and threatening his supervisor)
Hicks filed a race discrimination suit alleging disparate treatment
District Ct. decided in favor of St. Marys
Court of Appeals reversed this decision
Court of Appeals Decision in Hicks
>>> Reasons given by the organization were NOT the true factors in the
termination decision.
(e.g., Hicks was the only supervisor disciplined for acts of his subordinates,
similar/more serious violations by co-workers was ignored or treated lightly,
and Hick’s supervisor began the verbal argument to provoke Hicks)
Consequently, they decided that since the company was unsuccessful
defending its use of legitimate factors, the company was guilty of race
discrimination as a matter of law
“Because the defendants’ proffered reasons were discredited, defendants were
in a position of having offered no legitimate reason for their actions. ... offering
no rebuttal to an established inference that they had unlawfully discriminated
against plaintiff on the basis of his race.”
~ Supreme Court Decision in Hicks ~
>>> Company did offer (produce) non-discriminatory evidence
for its decision. It met burden under the McDonnell-Burdine
framework.
>>> Challenger must not only show pretext, but that the reasons
were a pretext for discrimination
“ ... it is not enough … to disbelieve the employer; the
factfinder must believe the plaintiff’s explanation of
intentional discrimination.
• Believed the true reason was personal, not based on race
>>> This raised concerns among many SC justices about the
value in offering indirect evidence in disparate treatment cases
Reeves v. Sanderson Plumbing (2000)
[Indirect evidence was sufficient for plaintiff to win]
• Reeves (age 57) fired for alleged poor work performance;
• Reeves files age discrimination suit
District Court instructions to the jury: “if the plaintiff fails to
prove age was a determinative or motivating factor in the decision
to terminate him, then your verdict shall be for the defendant.”
Jury decided in favor of Reeves
Court of Appeals (CA 5) reversed:
>>> Plaintiff’s showing that defendants’ reasons were false
and powerful, but insufficient to prove pretext for age
discrimination.
Alleged problems with Reeves performance that were refuted:
1) Poor recordkeeping (cost company $$$)
Reeves showed evidence that records were properly maintained; time
clock malfunctioned and he wrote the actual arrival time on time cards;
company never calculated the dollar loss allegedly caused by Reeves
2) Misrepresentations of records
No evidence of falsifying records introduced
3) Failure to record absences and hours worked by subordinates (especially
important given presence of union and costs for grievances/arbitration)
There had never been a union grievance or complaint about recordkeeping
4) Failure to discipline subordinates
Disciplinary decisions were the responsibility another supervisor
Company Defense
 Age-based remarks not made in the context of the decision to fire
Reeves
 No evidence that others who recommended Reeves be fired were
motivated by age
 Two other decision-makers involved in Reeves’ firing were over
age 50
 All three Hinge Room supervisors were accused of poor
recordkeeping
 Several supervisory positions were filled by those over 50 years old
Additional Evidence by Reeves
>>> Age-related remarks made by the person who was the
decision-maker regarding his firing (e.g., “was so old that he
must have come over on the Mayflower,” “was too damn old to
do his job.”
>>> Another supervisor (age 33) with the same production
efficiency levels as Reeves, was not fired
Supreme Court Decision in Reeves
Supreme Court ruled in favor of Reeves:
Given that petitioner established a prima facie case of discrimination, introduced enough
evidence for the jury to reject respondent’s explanation, and produced additional evidence
of age-based animus, there was sufficient evidence for the jury to find that respondent
had intentionally discriminated.
“… it is permissible for the trier of fact to infer the ultimate fact of discrimination
from the falsity of the employers explanation.
~ Mixed-Motive Scenarios ~
What is the basic description of a
mixed-motive scenario?
Essentially it occurs when illegal and legitimate factors
are used in making an employment decision.
Mixed-Motive Scenario (cont.)
Key Issues
1) What standard must the defense meet to establish that it used a legal factor?
• Preponderance of evidence vs. clear and convincing evidence
__________________________________________________________________
Preponderance
Clear and convincing
Beyond a reasonable doubt
2) Does the illegal reason have to be a motivating factor or a substantial
factor?
3) What evidence must be presented by the plaintiff, direct, indirect or either?
Price Waterhouse v. Hopkins
• Ann Hopkins, a senior manager, was passed over for promotion to
partner in two successive years
– She proved that several partners (decision makers) made
stereotypical sex-based derogatory remarks (e.g., her poor
interpersonal skills could be “corrected by a soft-hued suit or
new shade of lipstick,” she was “macho,” and she had been
“overcompensated for being a woman”)
• Defence countered with proof that Hopkins was brash and
abrasive and her contrary behaviour was the reason why she was not
promoted (legal reasons)
Price Waterhouse v. Hopkins (cont.)
• Lower courts ruled for Hopkins
Agreement:
-
•
“Clear and convincing” evidence was the proper defence standard
•
An illegal motive (e.g., sex) must be a motivating factor in the decision
Disagreement on employer liability:
-
District court: Liability exists regardless if the use of a legal motive is
proven
Court of Appeals (DC circuit): Defendant is NOT liable if legal motive is
proven
Price Waterhouse v. Hopkins (cont.)
Supreme Court ruling
1) Proper defense standard for proving a legal motive is a “preponderance of
evidence” (not “clear and convincing evidence” used by lower courts). Hopkins
won on remand since defense could not prove it would have made same decision
using a legal motive
2) Defense escapes all liability of it proves use of a legal motive
Disagreement on whether an illegal motive (e.g., sex) must be a motivating factor
(used by lower courts) or a substantial factor
O’Conner alone stated that proof of an illegal must be in the form of direct
evidence (used by subsequent lower courts even though she was alone on the
Court in this belief). Note: Even though O’Conner was alone in requiring direct
evidence, the majority of lower courts used this standard in mixed-motive cases
“… What is required is what Ann Hopkins showed here: direct evidence that decision
makers placed substantial negative reliance on an illegitimate criterion in reaching their
decision.”
~ Civil Rights Act of 1991 ~
Section 107(a) Impermissible consideration of race, color, religion,
sex, or national origin in employment practices.
Except as otherwise provided in this subchapter, 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.
Remedies are bifurcated (split into 2 parts):
If illegal motive was proven, plaintiff can get: Declarative relief (the court makes
an official declaration with respect to the case), injunctive relief (an injunction:
court order stating a given party must do, or not do, something specific), and
attorney’s fees
If defendant proves use of a legal motive, it can avoid other remedies (e.g.,
damages)
Desert Palace Inc., v Costa
Costa was fired after getting into a fight with a male coworker
 Costa provided indirect evidence that she was treated more
harshly than her male coworker that she fought with, as well as
other coworkers
 The company said that she was terminated for being a repeat
offender (and that the male she fought with was not)
 Costa provided evidence of other men were treated less severely
for offenses (e.g., being late, cursing) and had witnesses testify that
she was targeted for intense stalking
Desert Palace Inc., v Costa (cont.)
 The District Court gave the jury the following mixed-motive instruction to
the jury:
“ You have heard evidence that the defendant’s treatment of the plaintiff was
motivated by the plaintiff’s sex and also by other lawful reasons. If you find that
the plaintiff’s sex was a motivating factor in the defendant’s treatment of the
plaintiff, the plaintiff is entitled to your verdict, even if you find that the
defendant’s conduct was also motivated by a lawful reason…. However, if
you find that the defendant’s treatment of the plaintiff was motivated by both
gender and lawful reasons, you must decide whether the plaintiff is entitled to
damages. The plaintiff is entitled to damages unless the defendant proves by a
preponderance of evidence that the defendant would have treated plaintiff
similarly even if the plaintiff’s gender had played no role in the employment
decision.
 The company contended that the Costa failed to provide
“direct evidence” that sex was a motivating factor in her
dismissal
Desert Palace Inc., v Costa (cont.)
Supreme Court ruled in Costa that direct evidence is not
required for mixed-motive cases
“In order to obtain a [mixed-motive] instruction … a
plaintiff need only present sufficient evidence for a reasonable
jury to conclude, by a preponderance of the evidence, that
“race, color, religion, sex, or national origin was a motivating
factor for any employment practice.”
Mixed-Motive Scenario
Phase 1: Plaintiff must prove by a preponderance of direct
or indirect evidence that an illegal motive was a
motivating factor in an employment decision
Phase 2: Defense must prove by a preponderance of
evidence that the employment decision made would have
been made anyway in spite of the illegal motive
Phase 3: Prove by a preponderance of evidence that the
reasons (evidence) offered by the defence are a pretext for
discrimination