Important opinion from Hawaii Supreme Court

The Supreme Court of Hawaii has issued an important opinion that offers a new way to think about the McDonnell Douglas test. Adams v. CDM Media USA, Inc., 2015 WL 769745, No. SCWC-12-00000741 (Hawaii Feb. 24, 2015).

In Adams, the plaintiff alleged she was subjected to age discrimination when a company refused to hire her for a telephone sales position. The Hawaii Supreme Court found that the plaintiff established a prima facie case under McDonnell Douglas. The question in the case was whether the defendant met its burden in step two of that test, to articulate a legitimate, non-discriminatory reason for its action.

In support of its motion for summary judgment, the employer proffered several reasons for not hiring the plaintiff. The employer asserted the plaintiff lacked sales experience in the last five years, her prior sales experience was in other fields and involved face to face communication, she had little or no sales experience with corporate executives at Fortune 1,000 companies, and the decisionmaker was told the plaintiff disliked tedious work.

The Hawaii Supreme Court held that the employer failed to meet its burden of production under the second step of the McDonnell Douglas test. The Court emphasized that the second step in the test requires the employer’s decision to be “legitimate.” The Court interpreted the word “legitimate” through the lens of Hawaii discrimination law to require that the refusal to hire an individual must relate to the ability of the individual to perform the work in question.

The Court held that summary judgment in the employer’s favor was inappropriate because the reasons provided by the employer either were properly contested by the plaintiff, were based or inadmissible hearsay or did not relate to her ability to do the job. Importantly, the Court held that the employer could not use the lack of sales experience in the last five years as a legitimate reason if the plaintiff could perform the sales job adequately without recent experience. In this case, the employer admitted that the decisionmaker did not rely on the published criteria for the job in his decision to not hire the plaintiff, and the Court expressed concern that this “recent job experience” criteria was only being applied to the plaintiff and that it was not a legitimate reason to disqualify a person for the job in question.

This case represents an important new way of looking at the second step of the McDonnell Douglas test and shows the further separation of state discrimination law from federal law. Also, the majority and dissenting opinions illustrate how confusing McDonnell Douglas still is, even though the test has been mulled over by courts for more than 40 years.

 

Lexicon, Direct Evidence

By Tenechia Lockhart

In employment discrimination cases, a plaintiff may produce direct or circumstantial evidence of discrimination to support her claim. Although the Federal Rules of Evidence do not make a distinction between these two types of evidence, the distinction between direct and circumstantial evidence is important in some discrimination cases. The concept of direct evidence of discrimination emerged after Justice O’Connor’s concurrence in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). Justice O’Connor opined that in order for a plaintiff to prevail in a mixed-motive discrimination case she must produce direct evidence.

But what is direct evidence of discrimination? The federal courts have struggled with both defining and identifying direct evidence of discrimination. So much so that the Seventh Circuit has stated that “[c]ourts have noted the difficulty of defining direct evidence for discrimination claims. . . [and] [o]ur own statements on what constitutes direct evidence are not in complete harmony.” Sanghvi v. St. Catherine’s Hosp., Inc., 258 F.3d 570, 574 (7th Cir. 2001) (noting the lack of consensus within the Seventh Circuit, alone.) The Eleventh Circuit has described direct evidence of discrimination as “evidence, that, if believed, proves the existence of a fact in issue without inference or presumption . . . [and] is composed of only the most blatant remarks, whose intent could be nothing other than to discriminate on the basis of some impermissible factor.” Schoenfeld v. Babbitt, 168 F.3d 1257, 1266 (11th Cir.1999). Whereas the First Circuit defined direct evidence of discrimination as evidence “which, in and of itself, shows a discriminatory animus.” Jackson v. Harvard University, 900 F.2d 464, 464 (1st Cir. 1990). However, direct evidence of discrimination is not “stray remarks in the workplace . . . statements by nondecisionmakers, or statements by decisionmakers unrelated to the decisional process itself.” Price Waterhouse, 490 U.S. at 277 (O’Connor, J. concurring).

Take these facts for example. A male supervisor, John tells an employee, Alice, that she should not apply for a promotion because she recently had a child and would never be qualified for the time-consuming position. Ignoring John’s comment, Alice applies for the position and interviews before a three-member panel. John is not on the panel. Alice is not hired for the position and sues. Is John’s comment direct evidence of discrimination? It is unclear how a court would answer this question, although courts are generally reluctant to determine that a plaintiff has direct evidence of discrimination.

The choice of whether this is direct or circumstantial evidence is important, at least in single-motive cases. At summary judgment, a court will choose a framework through which to analyze the case. If a plaintiff has direct evidence, the court will simply ask whether a material question of fact exists about whether the employer took an action because of a protected trait. In most circuits, if a plaintiff alleges a single-motive case and has circumstantial evidence, the court will funnel the facts of her case through a McDonnell-Douglas analysis. The Seventh Circuit has created a test that allows a plaintiff to proceed through the direct framework if she has direct evidence or a convincing mosaic of circumstantial evidence.

The direct/circumstantial dichotomy is less important in mixed-motive cases. The Supreme Court held in Desert Palace v. Costa that courts should analyze motivating factor cases through the same test, whether the plaintiff had direct or circumstantial evidence. The Court’s holding in Desert Palace raises substantial questions about why the direct/circumstantial divide continues to exist in so-called single-motive cases.

McDonnell Douglas, Part II (The District Court)

The Supreme Court’s decision in McDonnell Douglas is a good example of appellate courts unnecessarily complicating the law. Going back and looking at the trial court’s opinion in the case illustrates an easier way of framing discrimination questions.

The facts of McDonnell Douglas, as recounted by the federal district court opinion, are rather straightforward. For blogging purposes, I will not provide separate citations for each sentence, but the facts of the case, as recounted by the trial court, are available at the following cite: Green v. McDonnell-Douglas Corp., 318 F. Supp. 846, 847 (E.D. Mo. 1970). In recounting the trial court’s decision, I am not claiming that it accurately captured all of the facts of the underlying case. Rather, I am showing how the case was framed and viewed for purposes of litigation.

Mr. Green worked for McDonnell Douglas as a mechanic. His employment record demonstrated that his work was viewed as satisfactory. In 1963, Mr. Green applied to work in the Electronic Equipment Division. The supervisors in the Electronic Equipment Division informed Mr. Green that if he transferred into the department, there was a possibility of a layoff, due to the short term of the project upon which they were working. Mr. Green accepted a position in the Electronic Equipment Division.

In the spring of 1964, employees in the Electronic Equipment Division were laid off; however, Mr. Green was not one of these employees. It became clear that more employees in the department would be laid off. The company used a semiannual ranking of employees to determine which employees would be laid off. The company tried to place employees on the layoff list in other jobs within the company, and gave a voluntary test “to help determine the qualifications of the men for higher job classifications which were open.” Plaintiff chose not to take the test.

It was undisputed that plaintiff had been involved in civil rights related protest activities since the early 1960s. During meetings related to the layoff, Mr. Green told company officials that he believed he was being laid off because of his participation in these activities. The company officials told Mr. Green this was not the case. On August 28, 1964, Mr. Green and eight other technicians were laid off.

After his layoff, Mr. Green engaged in numerous protests against McDonnell Douglas, including writing letters, filing charges and picketing. In October of 1964, Mr. Green, along with other members of the Congress on Racial Equality, stopped their cars on the main roads to McDonnell Douglas’s plant during the time of a shift change. Mr. Green may also have been involved in a second demonstration that caused McDonnell Douglas’s employees to be locked in the building at the end of their work day.

On July 26, 1965, Mr. Green applied for an open position at McDonnell Douglas. Even though he was qualified, he was not offered the job. The defendant claimed that it rejected the plaintiff due to his involvement in the demonstrations, which the company considered to be illegal actions.

Mr. Green brought two claims against McDonnell Douglas. First, he claimed that his original 1964 layoff violated 42 U.S.C. § 1981 because he was fired due to his race and participation in civil rights activities. Second, Mr. Green claimed that the company violated 42 U.S.C. § 1981 and 42 U.S.C. § 2000e-3(a) by refusing to rehire him based on his race, his participation in civil rights activities, and his opposition of practices that were deemed unlawful under the Civil Rights Act of 1964.

Prior to the trial on the merits, the trial court dismissed plaintiff’s Title VII claim that the company refused to rehire him based on his race. The trial court held that because the Equal Employment Opportunity Commission (EEOC) had not issued a reasonable cause finding on plaintiff’s refusal to rehire claim based on race, the court did not have jurisdiction to consider this claim. (Editor’s Note: This was an incorrect reading of Title VII’s requirements). The only Title VII claim considered by the district court was plaintiff’s claim that McDonnell Douglas refused to rehire him in retaliation for his participation in protest activities. However, plaintiff’s section 1981 claim that he was not rehired based on his race still remained for resolution by the trial court.

The trial court dismissed the layoff claim as untimely, leaving the refusal to rehire claims for trial by the court. In ruling on the discrimination and retaliation claims, the trial court articulated that “the controlling and ultimate fact questions are: (1) whether the plaintiff’s misconduct is sufficient to justify defendant’s refusal to rehire, and (2) whether the ‘stall in’ and the ‘lock in’ are the real reasons for defendant’s refusal to rehire the plaintiff.” The trial court held that the refusal to rehire (brought under section 1981) was not based on racial prejudice. Further, the trial court found that plaintiff’s participation in the stall-in and lock-in constituted illegal activities, and that the company could legitimately base its decision not to rehire plaintiff on his participation in this illegal conduct.

Remember, that this case was decided at a time when jury trials were not available under Title VII, and the judge sat as a factfinder at trial. Although some may disagree with the outcome of the case, the trial court judge framed the analytical question correctly. The question was what motivated the failure to re-hire. When the case reaches the United States Court of Appeals for the Eighth Circuit, that court greatly complicates the underlying question.

McDonnell Douglas, Part I

In a new series of posts, I want to start a conversation about whether the courts should keep using the McDonnell Douglas test. While the test played an important role in helping courts understand how discrimination happens, its complicated, three-part burden-shifting structure is largely unhelpful and should be abandoned. I will show how courts have diminished the test’s importance over time.

Since 1973, both courts and litigants have struggled to understand and apply the three-step burden-shifting framework. The test was originally designed to make it easier for plaintiffs to present cases involving circumstantial evidence. But, its structure is so confusing that it ultimately spawned decades of legal wrangling about the legal contours of the test and about how the test fits in with other ways of understanding discrimination. This legal wrangling focused courts on hyper-technical details of discrimination frameworks and away from the important question of whether discrimination actually happened in a particular case.

McDonnell Douglas helped courts understand that discrimination might be happening when an employer lies about the reason it took a particular action. It also helped courts understand that discrimination might happen when an employer treats similarly situated people differently. However, the complex burden-shifting framework is no longer needed to understand these points. In a series of posts, I will discuss the history of the test, its disconnection from the language of Title VII, and the confusion it caused. I also will discuss how modern courts treat the test.

As we begin this conversation about McDonnell Douglas, I will also continue posting about the causation questions we have been exploring for the past few months.

Lexicon, McDonnell Douglas Test

The McDonnell Douglas test refers to a three-part burden-shifting framework that courts use in some discrimination cases. The Supreme Court created the test in 1973 in the case of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). In McDonnell Douglas, an African-American employee brought suit alleging discrimination under Title VII of the Civil Rights Act of 1964 when his employer failed to re-hire him as a mechanic.

Under the McDonnell Douglas test, the plaintiff bears the initial burden. The plaintiff must prove the following: “(i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications.” Id. at 802. In a footnote in the decision, the Court noted that these elements would change to fit the circumstances of individual cases.

After the plaintiff satisfies each of these four elements, the burden then shifts to the defendant to articulate some legitimate and non-discriminatory reason for its action. If the employer does this, the burden then shifts back to the plaintiff to prove that the reason provided by the defendant was pretextual or discriminatory.

In a later case, Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981), the Supreme Court clarified the McDonnell Douglas test. In Burdine, the Supreme Court lessened the defendant’s burden in the McDonnell Douglas test. Cases prior to the decision had held that the employer had both the burdens of production and persuasion on the second step of the McDonnell Douglas test. For example: The plaintiff needed to prove the four elements of the prima facie case, then the defendant needed to prove that it had a legitimate non-discriminatory motive, then ultimately, the plaintiff could prove that the reason was pretext. If the defendant could not carry the burden of persuasion that it had a legitimate non-discriminatory reason for the adverse employment action then the burden would not shift back to the plaintiff. The Supreme Court, however, said that the defendant did not have a burden of persuasion. The defendant in the McDonnell Douglas burden-shifting framework only carries the burden of production. In other words, it only needs to present evidence of its nondiscriminatory reason for its actions but does not need to prove the existence of that reason.

by Erin Alderson

Causation, Part 5 (How History is Important Now)

In prior posts, I explored how two seminal discrimination cases (Griggs and McDonnell Douglas) approached causation. Importantly, neither case took a narrow, textual view. In neither case did the Court purport to look up the meaning up “because of” and magically reach an understanding about causation and discrimination law. Neither case explicitly relied on “but for” cause.

These two cases defined the core contours of Title VII litigation. Until the late 1980s, they were the Court’s major pronouncements about causation under Title VII. As I will discuss in future posts, recent cases have made a radical turn away from these early views of causation. This leads to major disconnects and questions in the underlying doctrine. And, as we will explore, the “elements” of a discrimination claim become increasingly complex as the Court jettisons (at least in part) these early cases.

Litigants arguing about causation questions in current cases should not forget this early history. In too many cases, courts exploring causation begin discussing cases from the late 1980s, like Price Waterhouse. But, the causation conversation started much earlier with Griggs and McDonnell Douglas, even if these cases are not traditionally described as being about causation.  Those advocating for legislative responses to Nassar and Gross can also use these early cases to show how recent Supreme Court cases ignore important parts of the historical development of Title VII and how courts and litigants first understood causation.

Causation, Part 4 (History, McDonnell Douglas)

In 1973, the Court decided McDonnell Douglas v. Green, the next major case to explain the core protections of Title VII. In this case, the Court explained one way a plaintiff could establish a claim of individual disparate treatment under the statute. Because McDonnell Douglas sets forth an evidentiary structure for discrimination claims, it implicitly involves causation. The test describes a way that a plaintiff can make a connection between a negative action and a protected trait. However, the test does not explicitly invoke either “but for” or motivating factor causal standards.

In McDonnell Douglas, the Supreme Court created a three-part, burden-shifting test for analyzing individual disparate treatment cases. Under McDonnell-Douglas, a court first evaluates the prima facie case, which requires proof of the following:

(i) [the plaintiff] belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications[.]

If the plaintiff establishes the prima facie case, a rebuttable presumption of discrimination arises. The burden of production then shifts to the employer to articulate some legitimate, nondiscriminatory reason for the employee’s rejection. If the defendant meets this requirement, the plaintiff can still prevail by demonstrating that the defendant’s reason for the rejection was simply pretext.

McDonnell Douglas remains one of the primary cases that courts use to consider individual disparate treatment cases. Courts and litigants invoke the test in cases brought under many different statutes, such as the ADEA, ADA, section 1981, and state discrimination law. As we consider how causation law develops, one lingering question is how McDonnell Douglas meshes with new iterations of cause.