1. Chapter 2: Disparate Treatment & Mixed-Motive Cases

2. ~ Basics of Disparate Treatment ~
What is disparate treatment?
"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, (1977)
Likely the most apparent form of discrimination meant to be outlawed by Title VII; to NOT use protected group status in making personnel decisions

3. How do you know if disparate treatment exists?

4. ~ Disparate Treatment Process ~
Step 1: The plaintiff must establish a prima facie case (presents presumptive evidence of discrimination)
Burdens are even
Step 2: The defense must articulate (not prove) that a legitimate reason exists for the alleged discriminatory practice
Step 3: The plaintiff must prove that the organization's reason for their rejection is a pretext for discrimination

5. McDonnell Douglas Corp. v. Green (1973)
Overview:
Green, a black male, was laid off as part of an overall workforce reduction
He subsequently participated in two illegal activities against the organization (a "stall-in" and a "lock-in”)
When the company later advertised for jobs, Green reapplied for the position of mechanic, a job he had previously held
He was not hired, the search continued for individuals with similar qualifications
Green sued for race discrimination

6. McDonnell Douglas Corp. v. Green (1973)
Plaintiff Burden (Step 1): To establish a prima facie case of racial discrimination, a complainant must:
Belong to a racial minority
2) Apply and be qualified for the job in which the employer was seeking applications
3) Be rejected for the job in question despite being qualified
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
>>> Green was Black
>>> Green applied for a mechanic position and his past work for
the company was “satisfactory”
>>> Green was not hired
>>> Company continued hiring applicants

7. Company Defense (Step 2)
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

8. Plaintiff 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

9. Follow-up Cases Furnco Construction v. Waters (1978)
“…that of proving that employer based decision on legitimate consideration and not an illegitimate one such as race.” (Phase II)
Board of Trustees v. Sweeney (1978)
“… upon the context in which they are used, we think there is a significant distinction between merely ‘articulating some legitimate, nondiscriminatory reason’ and ‘proving absence of discriminatory motive.’”
Decision in Sweeney indicated that the word “prove” in Furnco was a slip of the pen regarding defense burden (burden is articulation/production)

10. Texas Department of Community Affairs v.
Burdine (1981)
[Gave Court opportunity to further clarify defense burden and other matters]
Brief Facts: Sued for sex discrimination in promotion and termination decisions
Court of Appeals (5th Circuit):
Company needs to prove the use of a non-discriminatory reason
with a preponderance of evidence (remnants of the Furnco v.
Waters case?)
2) Evidence that the plaintiff was less qualified

11. 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)

12. Supreme Court Decision in Burdine (cont.)
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
*** Indirect evidence becomes an issue to be dealt with later

13. 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

14. 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 not deal with 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. Mary’s (no proof that crusade to terminate Hicks was motivated by race)
Court of Appeals reversed this decision

15. 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 in 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.”

16. ~ Supreme Court Decision in Hicks (5-4 decision) ~
>>> 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!!!

17. 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.

18. Alleged problems with Reeves performance that were refuted:
1) Poor recordkeeping (cost company $$$)
2) Misrepresentations of records
3) Failure to record absences and hours worked by subordinates (especially
important given presence of union and costs for grievances/arbitration)
4) Failure to discipline subordinates
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
No evidence of falsifying records introduced
There had never been a union grievance or complaint about recordkeeping
Disciplinary decisions were the responsibility another supervisor

19. 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

20. 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

21. Supreme Court Decision in Reeves
Supreme Court ruled in favor of Reeves (unanimous decision):
Similar to St. Mary’s: Not enough to disbelieve the defendant – factfinder must believe the plaintiff’s contention of intentional discrimination
*** But – enough evidence produced by Reeves to win case
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.”

22. ~ 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

23. 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?

24. Price Waterhouse v. Hopkins (1989) Basic Issue: Sex-Role Stereotyping
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”)
Defense countered with proof that Hopkins was brash and
abrasive and her contrary behaviour was the reason why she was
not promoted (legal reasons)

25. Price Waterhouse v. Hopkins (cont.)
Lower courts ruled for Hopkins
Agreement:
“Clear and convincing” evidence was the proper defense
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

26. 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
3) 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 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.”

27. ~ 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.
So, CRA-91 makes the use of an illegal factor a violation of law.
The remaining question is one of remedy not violation
CRA '91 bifurcated remedies (divided into 2 parts) ---
Illegal factor used, plaintiff eligible for: 1) Declaratory relief: Decision of the rights parties' rights under a statute (no damages awarded); 2) Injunctive relief: Decision requiring a party to do or not do a specific action (injunction); attorney's fees
If a legal factor was also used/proven, defendant can avoid damages and reinstatement, hiring, promotion, payment

28. Desert Palace Inc., v. Costa (2003)
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

29. 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

30. 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.”

31. 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 defense are a pretext for discrimination

32. Short Review
1) What are the three phases of the McDonnell–Burdine scenario?
2) Explain the similarities and differences in decisions of St. Mary‘s
v. Hicks (1993) and Reeves v. Sanderson Plumbing (2000).
3) What are the three phases of the mixed-motive scenario?
4) What was the decision in Price Waterhouse v. Hopkins (1989) and
how did congress react to the Supreme Court’s ruling in this
case?
5) Discuss the important features of the mixed-motive case of
Desert Palace v. Costa (2003).