PROVING DISCRIMINATION IN TITLE VII CASES by Daniel A. Farber

The Supreme Court issued two decisions this spring about proof of discrimination under Title VII, the federal statute prohibiting employment discrimination. One decision was hailed as a victory for victims of race and sex discrimination; the other was depicted in the press as a crushing defeat for Title VII plaintiffs.

The pro-plaintiff decision was Price Waterhouse V. Hopkins, 109 5. Ct. 1775 (1989). Ann Hopkins, a senior manager at Price Waterhouse, was the only woman of 88 candidates for partnership. Just under one percent of the partners were women. Hopkins was held over for another year, after which she failed ?o make partner. She then filed a Tide VII action.

She had worked at the firm's Washington, D.C., office for five years when she was proposed for partnership. Her biggest achievement had been landing a $25 million contract with the Department of State. The Washington partners lauded her as "an outstanding professional" with a "deft" touch, "extremely competent, intelligent," and highly successful with clients. Even her supporters admitted, however, that she was sometimes abrasive, impatient with staff; and difficult to work with.

The facts seem to make a lukewarm discrimination case, but her file also contained some real paydirt. Various partners had the following comments to offer: she was "macho," she "overcompensated for being a woman," and she ought to go to "charm school," To improve her chances for partnership, she was advised to "walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry."

This now looks like a perfect Title VII case. At trial, a social psychologist--demonstrating the ability of experts td uncover the obvious--testified that sex stereotyping had affected the firm's decision. Price Waterhouse argued, however, that the stereotyping had no effect on the decision--indeed, some of the remarks were made by her supporters. The trial judge found that the complaints about her interpersonal skills were legitimate and that they would have counted heavily against a male candidate as well. The judge concluded, however, that the firm had unlawfully discriminated against her by giving credence to stereotyped comments, which it had done nothing to disavow.

According to the judge, the firm had the burden of proving by clear and convincing evidence that the. final outcome was not affected. The D.C. Circuit affirmed. The issue before the Supreme Court was bow to allocate the burden of proof op causation. Justice Brennan wrote the plurality opinion, which separate concurrences by Justices White and O'Connor. Justice Kennedy filed a dissent, which was joined by Justices Renquist and Scalia.

Justice Brennan based his argument on the premise that Title VII precludes consideration of race and gender in employment decisions, so that the violation occurs whenever these factors are even considered by an employer. (In a footnote, he put aside the issue of affirmative action.) The statute is written in the present tense. a violation occurs the moment impermissible factors enter the decision. The employer then has an affirmative defense if it can show that the decision would have been the same without the impermissible factors.

3ustice White, in his concurrence, argued that the Court had unduly complicated the issue. A similar allocation of proof had already been established for cases involving constitutional rights and could readily be transferred to the Title VII context.

Justice O'Connor found the case more complex. In her view, the statutory language (forbidding decisions made "because of' impermissible factors) did require "but for" causation. She feared, however, that putting the burden on the plaintiff would undermine the deterrent effect of Tide VII. "Particularly in the context of the professional world, where decisions are often made by collegial bodies on the basis of largely subjective ₉riteria, requiring the plaintiff to prove that any one factor was the definitive cause of the decision makers' action may be tantamount to declaring Title VII inapplicable to such decisions. " In reaching this conclusion, she relied on the experience of the lower courts that regularly hear Tide VII cases.

In dissent, Justice Kennedy said that the Court was distortion prior law and creating future confusion. Unlike Brennan, Kennedy found no _5.igiificance in the "quite unremarkable fact that Tide VII is written in the present tense." Rather than create a special rule for mixed-motive cases, "a mixture of legitimate and illegitimate considerations," according to the plurality, Justice Kennedy would have preferred to apply the rule created for pretext cases.

When an employer denies that an improper factor entered the decision and claims that the decision was wholly motivated by a valid consideration, the burden is on the plaintiff to prove that this was merely a pretext In Kennedy's view, having a different burden of proof in mixed-motive cases will cause confusion, since the same evidence could support both a pretext issue and a mixed- motive issue

Title VII, Part II

Price Waterhouse v. Hopkins was generally seen as easing the burden of proof for plaintiffs. Just a month later, however, the Court issued another Title VII opinion, which some commentators saw as evidence that a new "Reagan majority" was firmly in control.

Wards Cove Packing Co. v Antonio, No.87-1387, slip op (June 5, 1989) involved rather peculiar facts. The defendant operates seasonal salmon canneries in Alaska. It hires "cannery workers" from a hiring hall that supplies mainly Filipinos and Alaska natives from local villages. It also hires "noncannery workers" for such tasks as quality control, rnaintenance, bookkeeping, cooking, and construction work. The noncannery workers are hired from the firm office in Seattle. The cannery workers are predominantly nonwhite, while the noncannery workers are almost all white, and the cannery workers are paid less than the noncannery workers.

By the time the case reached the Supreme Court, the question of discriminatory intent had been eliminated. The issue before the Court was whether the employer could be found liable on a theory of disparate impact. That theory of liability had originated in Griggs v Duke Power Co., 401 U.S. 424 (1971), where the Court ruled that Title WI extends beyond intentional discrimination. When an employment practice, even one that was adopted in good faith, operates as a barrier to minority workers, the burden is on the employer to justify it. In the past, this has often been a very heavy burden in practice. Classic examples of employment practices invalidated on this basis include requirements based on height and weight (adversely affecting women) and requirements based on aptitude test scores and high school diplomas (adversely affecting minorities).

Justice White wrote the Wards Cove majority opinion, holding that the plaintiffs had not made a prima fade case of disparate impact on the basis of racial disparity between cannery and noncannery workers. The plaintiffs' statistics all related to the results of the employment process: a disparity between the workers in two different occupational classifications. According to Justice White, however, the plaintiffs must offer proof about the employment process it self That is, they must show that some particular job requirement eliminates a higher percentage of minority applicants than nonminority applicants for noncannery jobs.

This holding would have been enough to dispose of the case, but the Court went on to consider other issues that might arise if the plaintiffs presented proper evidence about applicants. The Court began by tightening the standards for making a prima facie case. Once they had applicant flow data, the Court Held, the plaintiffs would need to identity specific discriminatory job requirements to make a prima face case. It would not be enough, for example, to show that minority members were half of all applicants for a noncannery position but only 10 percent of those hired. Instead, the plaintiffs would have to identify a particular step in hiring that eliminated minority members.

The real impact of Wards Cove is after a prima facie case is made. Previous decisions had held that the employer would then have the burden of proving that the employment practice in question was justified by "business necessity." According to Justice White, however, the language in these opinions had been misread by commentators and lower courts. Rather than the burden of persuasion, the employer only has the burden of production-- that is, of coming forward with some substantial evidence of a business justification, the Court held. The burden then shifts to the plaintiffs to persuade the trier of fact that no business justification exists.

? Apart form revising the burden of proof, the Court modified the substantive standard governing this issue. Instead of "business necessity," the test is merely whether "a challenged practice serves, in a significant way, the legitimate employment goals of the employer." The plaintiff can prevail in two ways. First, the plaintiff can show that the practice does not serve any legitimate purpose. Alternatively, the plaintiff can show that a less discriminatory alternative would serve the employer's interest equally well. The Court warned, however, that judges should proceed with care before second-guessing business decisions in this manner

In a brief dissent, Justice Blackmun decried the majority opinion:

The salmon industry as described by this record takes us back to a kind of oven and institutionalized discrimination we have not dealt with in years: a total residential and work environment organized on principles of racial stratification and segregation, which, as Justice Stevens points out, resembles a plantation economy.... The majority's legal rulings essentially immunize these practices from attack under a Title VII disparate-impact analysis.

Sadly, this comes as no surprise. One wonders whether the majority s~ believes that race discrimination--or, more accurately, race discrimination against nonwhites--is a problem in our society, or even remembers that it ever was. Cf City of Richniond v. J.A. Croson Co., 109 S.Ct. 706(1989).

In a longer dissent, Justice Stevens accused the Court of "turning a blind eye to the meaning and purpose of Title VII." He argued that the Court had overturned longstanding rules governing disparate impact cases. After reviewing the case law, Stevens said he was "astonished to read" the majority's "casual--almost summary--rejection" of prior law.

Intent or Impact?

It seems that the Wards Cove majority was rewriting established law under the guise of rereading precedent. If the motivation had been hostility toward Title VII claims, however, the Price Waterhouse decision would be inexplicable. In citing the Richmond opinion, Justice Blacckman may have been correct to link the decision to the affirmative action issue.

Because prior law made it hard to defend against a disparate impact claim, employers were put m a difficult position. They might believe that their job requirements were indeed justified by business needs but still be worried about their ability to prove it in litigation. Abandoning the job requirement might harm their business, while maintaining it could lead to liability. One way of avoiding this dilemma was to continue to use the job requirement while adopting an affirmative action plan to cure any racial or gender disparity in hiring. In theory, having an affirmative action plan is not a defense to a disparate impact claim; in practice, however, affirmative action makes it unlikely that a suit will be brought and is a way of settling suits after litigation begins. One of the rnain effects of Wards Cove, then, is to lessen the pressure on employers to adopt "voluntary" affirmative action plans.

Wards Cove and Price Waterhouse together may have a significant effect on the structure of Title VII cases, particularly those involving managerial or professional positions. Consider a female professor who is denied tenure for having published too few articles. Until now, a disparate impact suit was a possibility, since statistical studies of faculty publications show women publish less than men. (It would also be hard for the school to prove that a given number of publications is a business necessity.) After Wards Cove, however, it will be difficult for the professor to show that a publication requirement is not reasonably relevant to a university mission.

As to the longterm implications, the future is unclear. Wards Cove reflects a judicial willingness to reread precedents creatively, which may augur ill for a variety of precedents in civil rights and possibly in other areas. On the other hand, as Price Waterhouse shows, the Court has not embarked on a concerted crusade to limit civil rights enforcement.

Both cases reflect a common conceptual framework. In Price Waterhouse, the employer was faulted for treating individuals on the basis of stereotypes, that is, for treating employees as members of a group rather than as individuals. Wards Cove will discourage claims based on group impact in favor of those Stressing individualized mistreatment. Thus, the Court seems to view discrimination law from a highly individualistic, rather than group-oriented, perspective.

Daniel A. Faiber is Henry J. Fletcher Professor of Law at the University of Minnesota and the co-editor of CONSTITUTIONAL COMMENTARY.

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