Posts Tagged: supreme court case

McDonnell Douglas Corporation v. Green: A Framework for Analyzing Discriminatory Intent Using Indirect Evidence

In the landmark McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973), the Supreme Court described a burden-shifting framework by which employees can prove their employers engaged in unlawful discrimination under Title VII without any “direct” evidence of discriminatory intent. The enduring aspect of this case was the Court’s description of the burden-shifting proof framework, and not so much the outcome of particular factual case before it.

Summary

In short, McDonnell Douglas clarified that even if an employee lacks direct evidence of intentional discrimination (like a statement from her boss saying, “We’re firing you because of your race”), the employee can still prevail on a claim of intentional discrimination by presenting only indirect or circumstantial evidence that supports an inference of her employer’s discriminatory intent (like evidence that her boss replaced her with a less qualified employee of a different race). The opinion describes an order of presenting proof and shifting burdens to help courts analyze discrimination claims where the plaintiff has chosen to proceed using purely indirect or circumstantial evidence.

Facts

Green was a black mechanic, lab technician, and civil rights activist. He worked for McDonnell Douglas Corporation, a St. Louis aerospace company, until his termination in 1964. After his discharge, Green participated in a protest against McDonnell Douglas in which he asserted that his termination had been racially motivated and in violation of Title VII of the Civil Rights Act of 1964. The protest involved a “stall-in” in which protesters parked vehicles to block the roads leading to one of the company’s factories. Green was arrested for obstructing traffic. After the protest, McDonnell Douglas publicly advertised a job opening for qualified mechanics. Green applied for the position. Although Green was a qualified mechanic, McDonnell Douglas declined to hire him. McDonnell Douglas later defended this decision not to hire Green on the grounds that Green had engaged in illegal traffic-obstructing conduct while participating in the protest.

Procedural Posture

Green filed a charge with the Equal Employment Opportunity Commission (EEOC), alleging McDonnell Douglas refused to rehire him on the basis of race and retaliation in violation of Title VII. The EEOC found reasonable cause to believe McDonnell Douglas’ rejection of Green’s reemployment application violated the anti-retaliation provision of §704(a) of Title VII. That section forbids discrimination against applicants or employees for making any attempt to protest or rectify allegedly discriminatory employment conditions. 42 U.S.C. § 2000e–3(a). The EEOC made no finding as to Green’s allegation that McDonnell Douglas violated §703(a)(1) of Title VII, which prohibits racial and other types of status-based discrimination. 42 U.S.C. § 2000e–2(a)(1).

Green filed suit. The District Court dismissed Green’s claims, holding that McDonnell Douglas refused to rehire Green because of his participation in illegal protest demonstrations, rather than his race or opposition to racial discrimination. The District Court ruled that Green’s (illegally) obstructing traffic in protest was not an activity protected by §704(a), and dismissed Green’s §703(a)(1) racial discrimination claim on the grounds that the EEOC had made no finding of racial discrimination in any employment decision. The Court of Appeals affirmed the dismissal of the §704(a) retaliation claim. But it reversed the dismissal of Green’s §703(a)(1) racial discrimination claim, holding that an EEOC determination of reasonable cause was not a jurisdictional prerequisite to pursuing a discrimination claim in federal court violation. McDonnell Douglas appealed this decision. The Supreme Court granted cert.

The Court’s Decision: A Framework for Analyzing Indirect Evidence of Discrimination

In a 9-0 decision in favor of Green, the McDonnell Douglas Court described burden-shifting framework of organizing and evaluating indirect proof of discrimination. An employee may use this approach to show intentional discrimination by an employer in the absence of any direct evidence of discrimination. More than 45 years later, the McDonnell Douglas framework continues to guide lower courts’ summary judgment analyses of many discrimination and retaliation claims.

The McDonnell Douglas framework entails three discrete steps. First, the plaintiff employee must establish a prima facie case by presenting sufficient indirect evidence to give rise to an inference of discrimination. For example, in a non-hiring case, the employee can establish a prima facie case by presenting evidence that (1) the employee is a member of a Title VII protected group; (2) she applied and was qualified for the position sought; (3) the job was not offered to  her; and (4) the employer continued to seek applicants with similar qualifications. Similarly, in a demotion or termination case, the employee can establish a prima facie of racial discrimination case by showing (1) that she is a member of a Title VII protected group, (2) that she was qualified for the position she held, (3) that she was demoted and/or discharged from that position, and (4) that the position remained open and was ultimately filled by a someone of a different race. See, e.g., St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993).

If the employee can prove the elements of a prima facie case, the McDonnell Douglas analysis moves to the second step.

In that second step, the burden shifts to the defendant employer. The employer is allowed to offer a purported non-discriminatory reason for the adverse action suffered by the employer— such as the refusal to hire, or a termination. For example, in McDonnell Douglas, the employer argued that it refused to rehire Green not because of his race, but because he illegally obstructed traffic. Once the employer offers a non-discriminatory reason for its decision, the burden shifts back to the employee.

In that final step of the McDonnell Douglas framework, the plaintiff employee must be allowed the opportunity to demonstrate that the defendant’s proffered explanation is not consistent with a completely honest or unbiased view of the employee, making the explanation “pretext” for a discriminatory bias underlying the adverse employment action.

The Court therefore held that while the Court of Appeals correctly found Green proved a prima facie case of race discrimination, it erred in holding that McDonnell Douglas had failed to discharge its burden of presenting a legitimate, non-discriminatory reason for its decision to not rehire Green (his participation in illegal traffic obstructing). Critically, the Court made clear that on remand the employee Green must be given a fair opportunity to show that his employer’s stated reason was a pretext for a racially discriminatory decision. The Court indicated that one way an employee in Green’s position could successfully demonstrate pretext was with comparator evidence — such as by showing that white employees who engaged in similar illegal activity were retained or hired by McDonnell Douglas. Other evidence that may be relevant at the pretext stage, depending on the circumstances, could include evidence that the employer had discriminated against the respondent when he was an employee, or followed a discriminatory policy toward minority employees. See McDonnell Douglas, 411 U.S. at 804-05. This framework and its application has been the topic of much scholarly literature.

The McDonnell Douglas Court agreed with the Court of Appeals that an employee’s right to bring suit under Title VII is not confined to charges as to which the EEOC has made a reasonable cause finding.

Analysis

McDonnell Douglas clarified that even if an employee lacks direct evidence of intentional discrimination (like an admission from a supervisor that the employee was fired because of her race), the employee can still prevail on a claim of intentional discrimination by presenting only indirect or circumstantial evidence that supports an inference of her employer’s discriminatory intent (like evidence that her boss replaced her with a less qualified employee of a different race). The opinion there describes an order of presenting proof and shifting burdens to help courts analyze discrimination claims that turn on purely indirect or circumstantial evidence. First, the employee must establish a prima facie case which will give rise to an inference of discrimination. Second, the employer is allowed to offer a purported non-discriminatory reason for its adverse action against the plaintiff. And in the final step of this framework, the employee must be allowed the opportunity to show that the employer’s proffered explanation is just pretext for discriminatory bias.

It is worth noting that for an employee to prove unlawful discrimination, the McDonnell Douglas proof framework is not required. Rather “discrimination may be proven through direct and indirect evidence or through the McDonnell Douglas burden-shifting framework.” Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562, 572 (4th Cir. 2015) (emphasis added) (citing Raytheon Co. v. Hernandez, 540 U.S. 44, 49-50 & n3 (2003)). As noted above, direct evidence is “evidence of conduct or statements that both reflect[s] directly the alleged discriminatory attitude and … bear[s] directly on the contested employment decision.” Warch v. Ohio Cas. Ins. Co., 435 F.3d 510, 520 (4th Cir. 2006) (quoting Taylor v. Virginia Union Univ., 193 F.3d 219, 232 (4th Cir. 1999) (en banc)).

The McDonnell Douglas framework turns on circumstantial evidence and inference, having the employee demonstrate the employer’s proffered non-discriminatory reason for termination is “unworthy of credence.” Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). “The Supreme Court constructed the elements of the [McDonnell Douglas] prima facie case to give

plaintiffs who lack direct evidence a method for raising an inference of discrimination.” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 318 (4th Cir. 2005) (citing Burdine, 450 U.S. at 253–54 and Costa v. Desert Palace, Inc., 299 F.3d 838, 855 (9th Cir. 2002), aff’d, 539 U.S. 90 (2003)).

Where “a plaintiff has direct evidence of discrimination … the McDonnell Douglas framework is of little value[.]” Id. at 318 n4 (citing Price Waterhouse v. Hopkins, 490 U.S. 228, 271 (1989) (O’Connor, J., concurring) (noting that the Supreme Court has suggested that the burden-shifting framework is inapplicable where a plaintiff presents direct evidence of discrimination)).

An employee who has direct evidence of discrimination, or a combination of direct and indirect evidence, may therefore prove her claims without using the McDonnell Douglas method.

This site is intended to provide general information only. The information you obtain at this site is not legal advice and does not create an attorney-client relationship between you and attorney Tim Coffield or Coffield PLC. Parts of this site may be considered attorney advertising. If you have questions about any particular issue or problem, you should contact your attorney. Please view the full disclaimer. If you would like to request a consultation with attorney Tim Coffield, you may call 1-434-218-3133 or send an email to info@coffieldlaw.com.

 

Originally published on timcoffieldattorney.com 

Vance v. Ball State, 133 S.Ct. 2434 (2013): Vicarious Liability for Workplace Harassment

Vance v. Ball State, 133 S.Ct. 2434 (2013) addresses the circumstances under which an employer (i.e. a company or government that employs workers) can be held responsible in a lawsuit if one of its employees harasses another. This is generally referred to as “vicarious liability” — when the employer company or government is liable for the actions of its employees. Vance discusses the differing standards of proof for holding a company responsible for harassment in its workplace. Which standard applies depends on whether the harassing employee qualifies as a “supervisor,” as the case defines that term, and whether the harassment at issue culminated in a tangible employment action.

The plaintiff in Vance, an African-American woman, sued her employer, Ball State University, alleging that a fellow employee, Davis, violated Title VII of the Civil Rights Act through physical and verbal acts of racial harassment, thereby creating a racially hostile work environment. The District Court granted summary judgment to Ball State. It held that Ball State was not vicariously liable for Davis’ alleged actions because Davis, who lacked the authority to take tangible employment actions against Vance, was not a supervisor. The Seventh Circuit affirmed this decision, as did the Supreme Court.

In so holding, the Court articulated differing standards of proof for holding an employer liable for harassment in the workplace.

Co-Worker Harassment: Negligence

Under one approach, if the harassing employee was the victim’s co-worker, the employer can be held responsible (i.e. lose a lawsuit, and have to compensate the victim for the harassment he or she suffered at work) if the employer was negligent in allowing the harassment to take place. In other words, the employer can be liable for co-worker harassment if the company knew or should have known that the harassment would take place or was taking place, but did not take adequate steps to prevent or stop it.

Supervisor Defined

Under another approach — the primary topic of the decision in Vance — an employer can be held strictly liable or responsible for harassment by any of its “supervisors” against subordinate employees. This presents the question of what kind of employee constitutes a “supervisor” for the purposes of holding the employer responsible for that employee’s harassment of another worker. In Vance, the Supreme Court held that an employee is a “supervisor” for purposes of vicarious liability under Title VII only if he is empowered by the employer to take “tangible employment actions” against the victim. A tangible employment action means “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 761 (1998).

In so defining “supervisor,” the Court rejected various colloquial meanings of the term, and determined the concept was best understood by looking to the employer / employee framework set out in Title VII and the Court’s prior decisions in Ellerth and Faragher v. Boca Raton, 524 U.S. 775, 807 (1998).

Supervisor Harassment I: Strict Liability for Harassment Resulting in a Tangible Employment Action

The Vance Court further decided that if a supervisor’s harassment culminates in a “tangible employment action”, then the employer is strictly liable for the harassment. For example, if a supervisor demoted or fired a subordinate because she refused his sexual advances, the employer is responsible for that harassment — regardless of whether anyone at the company other than the harassing supervisor and the victim knew about the harassment.

Supervisor Harassment II: In the Absence of a Tangible Employment Action, Employer May Escape Liability with Faragher / Ellerth Defense

The Vance Court also discussed the standard for holding an employer liable for supervisor harassment when the harassment does not result in a tangible employment action. Under those circumstances, the Court explained , the employer may escape liability for the harassment if it can establish, as an affirmative defense, that (1) the employer exercised reasonable care to prevent and correct any harassing behavior and (2) that the plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities that the employer provided. This affirmative defense was described at length in previous Supreme Court cases Faragher v. Boca Raton, 524 U.S. 775, 807 (1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 761, 765 (1998). This is significant, because when the harasser is a supervisor the burden of proof is on the employer to prove this defense, as opposed to the situation where the harasser was a co-worker, in which case the victim has the burden of proving the employer was negligent in controlling working conditions. If the employer cannot prove the Faragher / Ellerth defense or another defense, it will generally be liable for the supervisor’s harassment.

As noted above, if the harassing employee does not qualify as a supervisor and is instead just a rank-and-file co-worker, Vance says that to hold the employer liable, the harassment victim can show that the employer was negligent in controlling working conditions and allowing a work environment where harassment could take place. But as explained Vance, it is generally easier for the victim of harassment to prevail against an employer if the harasser  is considered a “supervisor” rather than a just “co-worker.” This is because the employer is strictly liable for a supervisor’s harassment — liable without proof of negligence — if the harassment results in a tangible employment action, or if the employer is unable to meet its burden of proof to establish the Faragher / Ellerth defense.

This site is intended to provide general information only. The information you obtain at this site is not legal advice and does not create an attorney-client relationship between you and attorney Tim Coffield or Coffield PLC. Parts of this site may be considered attorney advertising. If you have questions about any particular issue or problem, you should contact your attorney. Please view the full disclaimer. If you would like to request a consultation with attorney Tim Coffield, you may call 1-434-218-3133 or send an email to info@coffieldlaw.com.

University of Texas Southwestern Medical Center v. Nassar, 570 U.S. 338 (2013): Different Standards for Proving Causation in Title VII Discrimination and Retaliation Claims

In University of Texas Southwestern Medical Center v. Nassar, 570 U.S. 338 (2013), the Supreme Court clarified the appropriate standards for proving causation in claims brought under Title VII of the Civil Rights Act of 1964. In short, the Court held that to prevail on a retaliation claim under Title VII, an employee must prove retaliation was a “but-for” cause of the adverse employment action at issue. This is arguably a more stringent causation standard than that available in Title VII claims for status-based discrimination, where an employee may prevail by showing her race, sex, religion, or national origin was a “motivating factor” behind the adverse employment action. But-for causation, however, does not require employees to prove retaliation was the sole cause of an adverse employment decision. Just like any event, a termination or other adverse action can (and often does) have multiple but-for causes.

Title VII protects employees and prospective employees from discrimination based on their race, color, sex, religion, or national origin. Under Title VII, an employer may not treat employees or job applicants differently based on such factors. 42 U.S.C. §2000e–2(a). In addition to those status-based discrimination protections, Title VII also prohibits employers from retaliating against any employees who oppose employment practices made unlawful by the statute, or who participate in filing complaints or investigations of discrimination. 42 U.S.C. §2000e–3(a).

Nassar highlights the differing standards for proving causation in Title VII retaliation claims and status-based discrimination claims, respectively.

Background

Nassar was a physician of Middle Eastern descent. His employer, University of Texas Southwestern Medical Center, held an affiliation agreement with a hospital, Parkland Memorial, that required the hospital to offer any vacant staff physician posts to University of Texas faculty members. Nassar held a position as a university faculty member and a hospital staff physician. During his employment, Nassar claimed a Dr. Levine, a supervisor, discriminated against him on account of his religion and ethnic heritage. Nassar brought this complaint to the attention of Dr. Fitz, the supervisor of Levine. After he arranged to continue working at the hospital without remaining on the university faculty, Nassar resigned from his university teaching position and circulated a letter explaining that he was resigning because of Levine’s harassment. Upset by the Levine’s public humiliation, Fitz objected to Nassar’s hospital job offer, and the offer was then withdrawn.  

Nassar filed suit, alleging two discrete violations of Title VII. First, Nassar claimed Levine’s racially and religiously motivated harassment had resulted in his constructive discharge from the university, in violation of 42 U.S.C §2000e-2(a), which prohibits an employer from discriminating against an employee “because of such individual’s race, color, religion, sex, or national origin.” This was, therefore, a claim of status-based discrimination. Second, Nassar claimed Fitz’s efforts to prevent the hospital from hiring him were in retaliation for his complaints about Levine’s discrimination and harassment, in violation of 42 U.S.C. §2000e-3(a), which prohibits employers from retaliating “because an employee has opposed… an unlawful employment practice… or… made a Title VII charge. The jury found for Nassar on both claims. The Fifth Circuit vacated the constructive discharge claim, but affirmed as to the retaliation claim, on the theory that retaliation claims brought under §2000e–3(a) —like §2000e–2(a) status-based claims— require only a showing that retaliation was a “motivating factor” for the adverse employment action, not its but-for cause. See 42 U.S.C. §2000e–2(m). And the Fifth Circuit found sufficient evidence to support the jury’s finding that Fitz was motivated, at least in part, to retaliate against Nassar for his complaints about Levine.

The Court’s Decision

The Supreme Court reversed, holding that Title VII retaliation claims require evidence of “but-for” causation, and could not be proved using the “motivating factor” standard of §2000e—2(m).

As the Court explained, an employee alleging status-based discrimination under §2000e–2 need not show “but-for” causation. In those claims, it is sufficient if the employee only shows that the motive to discriminate (because of race, color, sex, religion, or national origin) was one of the employer’s motives in taking an adverse employment action (like a termination or promotion denial), even if the employer also had other, lawful motives for the decision. This principle arose from the Civil Rights Act of 1991, which substituted a new Title VII burden-shifting framework for the one previously endorsed by the Court in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). The 1991 Act added a new subsection to §2000e–2, providing that “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.” 42 U.S.C. §2000e–2(m). Significantly, the text of §2000e—2(m) does not mention the causation standard for retaliation claims.

Rather, Title VII’s anti-retaliation provision appears in a different part of the law from the ban on status-based discrimination. The Court noted that like 29 U.S.C. §623(a)(1), the Age Discrimination in Employment Act provision at issue in Gross v. FBL Financial Services, Inc., 557 U. S. 167 (2009), §2000e–3(a) (Title VII’s anti-retaliation provision) makes it unlawful for an employer to take adverse employment action against an employee “because” of certain criteria. Finding a “lack of any meaningful textual difference between §2000e–3(a) and §623(a)(1)”, the Court concluded that Title VII retaliation claims require proof that the desire to retaliate was a but-for cause of the challenged employment action.

In so holding, the Court rejected Nassar’s arguments that §2000e–2(m)’s motivating-factor test applied to retaliation claims. First, the Court noted that such a reading was inconsistent with the plain language of the motivating-factor section, which discusses only race, color, religion, sex, and national origin discrimination — i.e., status-based claims. The section says nothing about retaliation claims. 570 U.S. at 339, 352-53.

Second, the Court determined Nassar’s reading was inconsistent with the statute’s “design and structure.”  570 U.S. at 339, 353. This was because Congress made the motivating-factor provision a subsection within §2000e–2, which deals only with status-based discrimination. By contrast, another part of the 1991 Act, §109, expressly refers to all unlawful employment actions. The Court reasoned that if Congress had intended the motivating-factor section to apply to retaliation, it would have included similar language — addressing all unlawful employment actions, instead of just status-based actions — in the motivating-factor section. Congress did not do this. The Court, therefore, concluded that Congress deliberately omitted retaliation claims from the motivating-factor provision set out in §2000–2(m).

Third, the Court rejected Nassar’s proposition that Congress’ enactment of a “broadly phrased antidiscrimination statute”, like Title VII, may signal an accompanying intent to also ban retaliation against individuals who oppose that discrimination. 570 U.S. at 339, 354-55. Some cases seemed to support this argument. For example, in CBOCS West, Inc. v. Humphries, 553 U. S. 442 (2008), the Court held that 42 U.S.C. §1981 — which ensures that all persons “shall have the same right … to make and enforce contracts … as is enjoyed by white citizens” — prohibits not only racial discrimination but also retaliation against those who oppose it. Id. at 445, 452–453. Similarly, the Court has interpreted the broad wording of the ADEA’s federal-employee provisions (“All personnel actions affecting [federal] employees … who are at least 40 years of age … shall be made free from any discrimination based on age”) as including a bar on retaliation. Gómez–Pérez v. Potter, 553 U.S. 474, 479, 487 (2008); 29 U.S.C. § 633a(a). But the Court found that these cases did not support the “quite different rule that every reference to race, color, creed, sex, or nationality in an antidiscrimination statute is to be treated as a synonym for retaliation, especially in a precise, complex, and exhaustive statute like Title VII.”  570 U.S. at 339, 355. For example, the Court pointed out that the Americans with Disabilities Act of 1990, which contained detailed descriptions of the practices constituting prohibited discrimination, as well as an express, separate anti-retaliation provision, was passed only a year before §2000e–2(m) was passed. The Court found this shows that “when Congress elected to address retaliation as part of a detailed statutory scheme, it did so clearly.” Id. at 339, 357.

The Court also expressed concerns that applying a motivating-factor standard to retaliation claims would stress administrative and judicial resources, by potentially leading to an increase in claims where the employer had acted without retaliatory intent. 570 U.S. at 358-59.

Finally, the Court rejected Nassar’s last-resort argument that retaliation claims should be allowed to proceed under a motivating-factor framework because that approach would be consistent with the views of the Equal Employment Opportunity Commission, as expressed in its guidance manual. The Court determined that the EEOC’s explanations for its views “lack[ed] the persuasive force that is a necessary precondition to deference” under Skidmore v. Swift & Co., 323 U.S. 134 (1944). 570 U.S. at 361.

The Court therefore held that Title VII retaliation claims must be proved according to the traditional principles of but-for causation, not the more lenient motivating factor standard that § 2000e-2(m) applies to status-based discrimination claims.

Analysis

It is worth noting that while but-for causation is often viewed as a higher standard of causation than motivating-factor, it does not require employees to prove that retaliation was the sole cause of an adverse employment decision. A termination or other adverse action, just like any event, can (and often does) have multiple but-for causes. For example, a car might run off the road because the driver was speeding, the road was wet, and the tires were bald. If the road were dry, or if the driver had not been speeding, or if the tires had not been bald, the car would have stayed on the road. In that situation, the driver’s speed, the road conditions, and the tires were all but-for causes of the car leaving the road. Similarly, an employer might terminate an employee partly because the employee was not a top performer, and partly in retaliation because the employee had complained about sexual harassment. Under Nassar, the key question in these cases is simply whether the employer would have taken the adverse action in absence of a retaliatory motive. If the answer to that question is “no,” the but-for standard is satisfied.


This site is intended to provide general information only. The information you obtain at this site is not legal advice and does not create an attorney-client relationship between you and attorney Tim Coffield or Coffield PLC. Parts of this site may be considered attorney advertising. If you have questions about any particular issue or problem, you should contact your attorney. Please view the full disclaimer. If you would like to request a consultation with attorney Tim Coffield, you may call 1-434-218-3133 or send an email to info@coffieldlaw.com.