~ Basics of 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.”
>>> Direct and indirect (circumstantial) evidence is allowable
Direct Versus Indirect Evidence
[Direct and indirect evidence does not involve the quality of the
evidence, but how it isused]
*Direct: that which shows, without inference, the existence of the fact in
question [Decision-maker statement: “I fired him because he was Black”]
Supervisor remark soon before he denied a female a promotion she said she
had been promised: “f --- ing women, I hate f --- ing women in the office”
[Heim v. Utah, 1993]. Not considered as direct evidence
Circumstantial:
• Organization’s forte is in its management who are “mostly young, well educated. ...”
• The company was “young, mean, and lean”
• The challenger ought to retire
• The challenger should have foreseen his firing when a yonger person was hired
>>> Comments made by the organization’s president (who was involved in the decision
to fire the challanger. Circumstantial evidence that is directly tied to an adverse
decision [Radabaugh v. Zipp Feed Mills, 1993 --- evidence of unlawful intent)
*Relatively uncommon (UAW v. Johnson Controls).
~ Disparate Treatment Process ~
Step 1: Challenger must establish a prima facie case
Step 2: The company must articulate that a legitimate,
nondiscriminatory reason exists for the rejection of the
challenger
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
~ Application Requirement ~
Futile Act Doctrine: If a company has a longstanding practice
of not hiring minorities
From Teamsters: If an employer should announce his policy of
discrimination by a sign reading "Whites Only" on the hiring-office door,
his victims would not be limited to the few who ignored the sign and
subjected themselves to personal rebuffs. The same message can be
communicated to potential applicants more subtly but just as clearly
by an employer's actual practices - by his consistent discriminatory
treatment of actual applicants, by the manner in which he publicizes
vacancies, his recruitment techniques, his responses to casual or tentative
inquiries, and even by the racial or ethnic composition of that part of his
work force from which he has discriminatorily excluded members of
minority groups
~ Qualification Issue ~
Absolute: The plaintiff possesses minimum qualifications
for the job (e.g., based on a job description)
Relative: The plaintiff’s qualifications compare favorably
to others considered for the position (e.g., plaintiff must
prove that he/she was most qualified for the job)
From Teamsters v. U.S. (footnote 44): The plaintiff must prove that her
rejection for a given job was not the result of “an absolute or relative lack of
qualifications.”
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
preponderence of the evidence that the legitmate reasosn
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
Furnco Construction v. Waters (1978)
Brief Facts:
• Race discrimination suit filed when black applicants were not hired
• No permanant workforce at company; staffing done per job. In this case,
hiring done based on those individuals known to be qualified and by
recommendations. No applications were excepted at company site.
• District Court. --- No evidence for discrimination under Green
• Ct. Appeals --- Prima facie case made; Co. was guilty of discrimination
allegations
• History of racial discrimination; rejected as legitimnate the need for
supervisor to select those whose ability was known to him; no whites had
applied at company site
• Court of Appeals recommended the company to “... take applications, with
inquiry as to qualifiactions and experience, and then check, evaluate, and
compare those claims against the qualifications and experience of other
bricklayers wuith whom the superintendent was not alrady acquainted.”
Supreme Court Decision in Furnco
• Prima facie case made; but prima facie case does NOT equal
guilt (as implied by Ct. Appeals).
“ ... We think the Court of Appeals went awry, however, in apparently
equating a prima facie showing under McDonnell Douglas with an ultimate
finding of fact as to discriminatory refusal to hire under Title VII; the two are
quite different and that difference has a direct bearing on the proper
resolution of this case.
A McDonnell Douglas showing is not the equivalent of a factual finding of
discrimination ...
“It [the Court of Appeals] did not conclude that the practices
were a pretext for discrimination, but only that different
practices would have enabled the emplyer to at least consider,
and perhaps to hire, more minirity applicants.”
Supreme Court Decision in Furnco (cont.)
• No requirement to choose process that guarantees most minority
appplicants
“The Court of Appeals... thought Furnco's hiring procedures not only must be
reasonably related to the achievement of some legitimate purpose, but also
must be the method which allows the employer to consider the
qualifications of the largest number of minority applicants. We
think the imposition of that second requirement simply finds no support
either in the nature of the prima facie case or the purpose of Title VII
The dangers of embarking on a course such as that charted by the Court of
Appeals here, where the court requires businesses to adopt what it perceives to
be the "best" hiring procedures, are nowhere more evident than in the record of
this very case.
“Title VII … does not impose a duty to adopt a hiring procedure that
maximizes hiring of minority employees”
Supreme Court Decision in Furnco (cont.)
• Use of statistics may be relevant to show motive
The Court of Appeals also appears improperly to have concluded that once a
McDonnell Douglas prima facie showing had been made out, statistics offered by
petitioner to show that its work force was racially balanced were totally irrelevant
to the question of motive.
The employer, ... must be allowed some latitude to introduce evidence bearing on
his motive. Thus, although petitioner's statistics were not and could not be
sufficient to demonstrate conclusively that its actions were not discriminatorily
motivated, the District Court was entitled to consider the racial mix of the work
force when making a determination as to motivation ,...”
Texas Department of Community Affairs v.
Burdine (1981)
Brief Facts:
District Ct. --- No gender bias in promotion decision; 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
Supreme Court Decision in Burdine (cont.)
2) Defendant does not have to prove that the plaintiff’s
qualifications are less the the person
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
St. Mary’s Honor Center v. Hicks (1993)
Brief Facts: After reorganization, Hicks received several
discipliary actions from his new supervisor (before his
performance was satisfactory). He was suspended (and later
fired) for rules violations by his subordinates, failing to
iadequately investigate a brawl between inmates, not ensuring his
subordinates entered vehicle use in log book, arguing and
threating 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 Appleals Decision in Hicks
>>> Reasons given by the organization were NOT the true
factors in the termination decision.
(e.g., Hicks was the only supervisor disciplied 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 pretext was established, the
company was guilty of race discrimination
“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 ~
>>> Comany did offer (produce) non-discriminatory evidence for
its decision. It meet it burden under the Burdine framework.
>>> Challenger must not only show pretext, but that the reasons
were a pretext for discrimination
“ ... should the defendant carry this burden, the plaintiff must
then have an opportunity to prove by a preponderence of the
evidence that the legitmate reasons offered by the defendant were
not its true reasons but were a pretext for discrimination.”
[From Burdine]
Reeves v. Sanderson Plumbing (2000)
Reeves (age 57) fired for alleged poor work performance
District Court ruled in favor of Reeves
Court of Appeals reversed
>>> Pretext may exist regarding the reasons offered by the
organization; but not sufficient evidence of age discrimination
Alleged problems with Reeves performance:
1) Poor recordkeeping (cost company $$$)
Reeves showed evidence that records were properly maintained; time
clock malfunctioed 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 supordinates
(especialy 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
Additional Evidence by Reeves
>>> Age-related remarks made by the person who was the
decision-making 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
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
Supreme Court Decision in Reeves
Court of Appeals erred in limiting evidence after Step 2 to the agerelated remarks, and not considering the facts of the case as a whole.
“... the court must review the record taken as a whole.”
“ ... the court should review all of the evidence in the record
Challenge’s burden is to demonstrate:
• “that the stated reasons were not the real reasons for [petitioner’s]
discharge;
• “that age discrimination was the real reason for [petitioner’s]
discharge.”
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.
Disparate Treatment Case Summary
McDonnell-Douglas v. Green:
>>> Developed 3-step process for disparate treatment claims
Furnco v. Waters:
>>> Establishing a pioma facie case does NOT equal a finding of
discrimination
>>> No requirement to use a process that attracts the most minority
members
>>> Use of statistics (representation) may be used to show motive
Disparate Treatment Case Summary (cont.)
Texas v. Burdine:
>>> Company required tp produce evidence of legitimate reasons (not
prove them)
>>> Objective evidence is not required to document that most qualified
person was hired/promoted
St, Mary’s v. Hicks:
>>> Demonstration of pretext by challanger is NOT enough; evidence that
the offered reasons were a pretext for discrimination is required
Reeves v. Sanderson Plumbing:
>>> Evidence in addition to that offered in establishing a prima face case
should be considered (the record as a whole)
~ Pattern or Practice
Discrimination ~
~ Pattern or Practice Discrimination ~
[Subset of Disparate Treatment Discrimination]
From Title VII --- Section 707(a)
Whenever the Attorney General has reasonable cause to believe
that any person or group of persons is engaged in a pattern or
practice of resistance to the full enjoyment of any of the rights
secured by this subchapter, and that the pattern or practice is of
such a nature and is intended to deny the full exercise of the rights
herein described, the Attorney General may bring a civil action in
the appropriate district court of the United State
The Pattern or Practice Scenario
Phase 1: Plaintiff provides statistical evidence of
underrepresentation of minorities/women in the workforce
or overrepresentation of minorities/women in less desirable
jobs
Phase 2: Defendant can use McDonnell–Burdine defense for
pattern statistics; defense for individual claims generally
follows McDonnell–Burdine rules
Phase 3: Plaintiff ’s requirement for showing pretext is the
same as previously discussed for McDonnell–Burdine cases
for both the overall and individuals claims
Basic factors for evidence of pattern or practice
discrimination
• Impact on actual applicants (“Flow” statistics)
• Impact on potential applicants
• Representation regarding a company’s workforce (“Stock” statistics).
Most commonly used comparison in EEO cases
Basically, this is a comparison between 2 numbers (often percentages)
• % reflective of the company’s work force
versus
• % indicative of the relevant population or labor force
 Or cross-job comparisons (e.g., between 2 jobs) within an organization
Teamsters v. United States
The federal government sued a nationwide trucking company and its union for
discrimination against black and Hispanic Americans in hiring intercity truck
drivers. The government claimed that these minorities were relegated to lowerpaying driving jobs by the existence of separate units (local unions) for intercity
and local drivers. Protection from layoff and competition for vacancies were
determined by bargaining union seniority, so that intercity runs were given to the
applicant who had been an intercity driver the longest. To support its argument,
the government presented the following statistics on the company work force:
White
Black & Hispanic
____________________________________________________
Intercity drivers
1802
13
Local drivers
1117
167
_____________________________________________________
Also, the government introduced population statistics that showed further
disparities. For instance, some company terminals in areas of substantial black
population had no black intercity drivers.
Teamsters --- Representation statistics as evidence of
a prima facie
case
Statistics showing racial or ethnic imbalance are probative in a case such as this one only
because such imbalance is often a telltale sign of purposeful discrimination; absent
explanation, it is ordinarily to be expected that nondiscriminatory hiring practices will in
time result in a work force more or less representative of the racial and ethnic
composition of the population in the community from which employees are hired. Evidence
of long lasting and gross disparity between the composition of a work force and that
of the general population thus may be significant even though 703 (j) makes clear that
Title VII imposes no requirement that a work force mirror the general population."
From Title VII ---703 (j) Nothing contained in this subchapter shall be interpreted to
require any employer, employment agency, labor organization, or joint labor–
management committee subject to this subchapter to grant preferential treatment to any
individual or to any group because of the race, color, religion, sex, or national origin of
such individual or group on account of an imbalance which may exist with respect to
the total number or percentage of persons of any race, color, religion, sex, or national
origin employed by any employer, referred or classified for employment by any
employment agency or labor organization, admitted to membership or classified by any
labor organization, or admitted to, or employed in, any apprenticeship or other training
program, in comparison with the total number or percentage of persons of such
race, color, religion, sex, or national origin in any community, State, section, or other
area, or in the available work force in any community, State, section, or other area.
Teamsters
[Degree of disparity between workforce & population statistics]
"At best, these attacks go only to the accuracy of the comparison between the composition of
the company's work force at various terminals and the general population of the surrounding
communities. They detract little from the Government's further showing that Negroes and
Spanish-surnamed Americans who were hired were overwhelmingly excluded from line-driver
jobs. Such employees were willing to work, had access to the terminal, were healthy and of
working age, and often were at least sufficiently qualified to hold city-driver jobs. Yet they
became line drivers with far less frequency than whites. ... Of 2,919 whites who held driving
jobs in 1971, 1,802 (62%) were line drivers and 1,117 (38%) were city drivers; of 180 Negroes
and Spanish-surnamed Americans who held driving jobs, 13 (7%) were line drivers and 167
(93%) were city drivers. In any event, fine tuning of the statistics could not have obscured
the glaring absence of minority line drivers. As the Court of Appeals remarked, the
company's inability to rebut the inference of discrimination came not from a misuse of statistics
but from "the inexorable zero."
In cases where the differences are vast, technical issues regarding statistical
analyses/comparisons may be irrelevant
>>> Company failed to articulate a legitimate reason for the
disparities
Hazelwood v. United States
Summary of the statistics used in Hazelwood
Total teachers hired by the district .........................
Total # of teachers hired since 3/24/72 .................
% of Black teachers hired by the district ...............
% Blacks hired since 3/24/72 ..............................
% Black teachers living in metropolitan area ........
1231
405
1.8%
3.7%
15.4%
(surrounding county; % the gov't thought was appropriate)
% Black teachers in area living outside center city ..
5.7%
(local area; % that Hazelwood thought was appropriate)
% Black pupils enrolled in school district ..............
2.3%
>>> Hazelwood won since the S.C. decided that they had
articulated a legitimate reason for the imbalance (e.g.,
competition from the City of St. Louis) when the “proper” relevant
labor market was used
Relevant Labor Market (cont):
Qualification requirement:
When special qualifications are required to fill particular jobs,
comparisons to the general population (rather than to the
smaller group of individuals who possess the necessary
qualifications) may have little probative value (from Hazelwood
v. U.S.)
Some Key Issues/Questions
What determines the number to be used indicating the labor market?
• What geographical area is to be used? (e.g., a city, region, entire
nation)
• Who is counted in the geographical area? (e.g., everyone in the population, only
those with certain qualifications)
Who is counted within the company?
• Full-time workers only or do part-time employees get counted?
• Employees in all job classes, a categorization of certain job
classes, or only one job class?
• Employees in just one department, the entire facility, or
facilities across the nation?