Academic journal article Labor Law Journal

Proof of Disparate Treatment under Federal Civil Rights Laws

Academic journal article Labor Law Journal

Proof of Disparate Treatment under Federal Civil Rights Laws

Article excerpt

The tripartite burden shifting analysis of disparate treatment cases derived from McDonnelI Douglas Corp. v. Green,1 and Justice O'Connor's requirement that a plaintiff produce "direct" evidence to warrant reaching the question of mixed motives in her concurring opinion in Price Waterhouse v. Hopkins,2 continue to cause untold confusion among many courts of appeals, although the Supreme Court has effectively abandoned those approaches after Desert Palace, Inc. v. Costa.3 These paradigms should be discarded for a unified approach under which the plaintiff's burden is simply to prove that discrimination was a motivating factor in the employment action, which can be proven by direct or circumstantial evidence or both. Further, inability of the plaintiff to show that the employer's proffered reason for its action was ρ re textual should not doom the plaintiff's case. If there is evidence that discrimination was a motivating factor, a violation has been proven notwithstanding the existence of other, legitimate, bona fide reasons.4


The Supreme Court established the pretext/ burden shifting model for disparate treatment cases under Title VII of the Civil Rights Act of 1964 in McDonnell Douglas and has elaborated on it and modified it many times since 1973.5 The Supreme Court has also applied the McDonnell Douglas approach in other areas of EEO law, such as the Age Discrimination in Employment Act (ADEA)6 and the Americans with Disabilities Act (ADA).7 Lower courts have routinely applied it and its progeny under Title VII and in other EEO areas as well.

A typical statement of the so-called "tripartite" McDonnell Douglas analysis is:

[plaintiff] was required to produce evidence that she was: (1) a member of a protected class; (2) qualified for the position sought; (3) rejected for the position; and (4) treated less favorably than a similarly situated candidate outside her protected class. ... If a plaintiff makes a prima facie showing of discrimination, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its decision. ... If the employer does so, it rebuts the presumption of discrimination, and the burden shifts back to the employee to show that the proffered reason was pretextual. . . . Despite this burden shifting approach, the ultimate burden of proof to establish discrimination remains at all times with the plaintiff.8


In 1989, a concurring opinion by one Justice of the Supreme Court added a new complication, and considerable confusion, to the whole question of how a plaintiff in an EEO case may prove discrimination. A plurality of the Court held in Price Waterhouse v. Hopkins,9 that the prohibition of discrimination in Title VII "because of" any protected characteristic (race, color, religion, sex or national origin) makes illegal any employment decision in which one of those characteristics played a part. Those four Justices held that, once the plaintiff establishes that discrimination was a factor in the employment decision, he or she has carried his burden of proof or persuasion. Further, an employer may escape liability only if it can prove that it would have reached the same decision even in the absence of the prohibited factor.10 The plurality explicitly rejected the proposition, put forward by Price Waterhouse, that the plaintiff must prove that "but for" the prohibited factor, she would not have been treated adversely: "To construe the words 'because of as colloquial shorthand for 'but-for causation,' as does Price Waterhouse, is to misunderstand them."11

Justice O'Connor, however, arrived at a significantly different formulation which caused, and is still causing, untold confusion and is leading to courts of appeals decisions that are simply wrong. Concurring in the judgment in Price Waterhouse, Justice O'Connor held that a plaintiff could only put the employer to its affirmative defense of proving "same result" if the plaintiff presented "direct evidence" that discrimination was a motivating factor in the employer's decision: "in order to justify shifting the burden on the issue of causation to the defendant, a disparate treatment plaintiff must show by direct evidence that an illegitimate criterion was a substantial factor in the decision. …

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