Select Disparate Treatment

AN OVERVIEW OF

SELECT DISPARATE TREATMENT

TITLE VII CASES

"DISMANTLING THE GLASS CEILING"

Wendy J. Thompson

University Counsel

and

Assistant to the President

Middle Tennessee State University

I. INTRODUCTION

Over the years, employment discrimination decisions have continued to narrow and define issues of proof, liability, and damages. Inclusive in that body of cases are those alleging gender discrimination in promotion opportunities. These cases reflect a societal phenomenon commonly referred to as the "glass ceiling". In short, the "glass ceiling" describes circumstances akin to a barrier unseen to the naked eye, which seems to prevent women in the workforce from advancing to higher level positions in their particular companies or work environments, despite their proven capabilities. Policies and practices which hinder the opportunities for advancement based on gender are as insidious as those which exclude women from hire and subject the employer to the same liability penalties. Equally as damaging is the resulting atmosphere of low morale and diminished credibility regarding personnel decisions.

Failure to promote, based on gender or sex, is unlawful discrimination and violates Title VII of the Civil Rights Act of 1964, as amended. Such decisions, when intentionally made against a protected person or group, result in disparate treatment. Disparate treatment in promotional opportunity cases are decided utilizing the line of United States Supreme Court decisions stemming from its 1973 decision in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800 (1973). This outline will discuss McDonnell Douglas, St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993), and Kolstad v. American Dental Association, 119 S. Ct. 2118 (1995), and their progeny of discrimination cases. This body of case law is instructive in advising clients on the legal parameters of employment actions, and the repercussions of basing employment decisions on factors other than qualifications, merit, and performance.*

II.McDONNELL DOUGLAS

The Supreme Court in McDonnell Douglas noted a societal interest in its decision, stating, "The broad, overriding interest, shared by employer, employee, and

consumer, is efficient and trustworthy workmanship assured

through fair and racially neutral employment and personnel decisions. In the implementation of such decisions, Title VII tolerates no discrimination, subtle or otherwise."

______

*This outline discusses only intentional discrimination against individuals and therefore does not include "disparate impact" decisions.

In its decision, the Court established the order and allocation of proof in employment discrimination cases as follows:

A. Allocation of Proof:

The plaintiff carries the initial burden of establishing a prima facie case of discrimination. In order to do this, the plaintiff must establish that: (1) he or she is within a protected class; (2) he or she applied and was qualified for the job; (3) he or she was denied the job; and, (4) the position remained open, and the employer continued to seek applicants from persons of complainant’s qualification.

B. Order of Proof:

The procedural steps in the process are:

1. If the plaintiff has established a prima facie case using the four-part test, then;

2.The employer must articulate some legitimate non-discriminatory reason for the requisite evidence. If the employer does so, then;

1. The plaintiff must show that the employer’s offered reason was a pretext or discriminatory in its application.

III.ST. MARY’S

A divided Supreme Court decided in 1993 that once an employer proffers a non-discriminatory reason for the adverse employment action--even if false--the burden shifts back to the individual to prove that unlawful discrimination was the basis for the adverse action. The decision purported to clarify the burden of proof issue by articulating that the plaintiff must always prove that the basis for the adverse action was discriminatory. It is no longer sufficient to show that the employer’s reason was a pretext--the plaintiff must prove that the reason offered was a pretext foradiscriminatoryact.

The dissenting opinion states:

The majority’s scheme greatly disfavors Title VII plaintiffs without the good luck to have direct evidence of discriminatory intent . . . under the majority’s scheme. A victim of discrimination lacking direct evidence will now be saddled with the tremendous disadvantage of having to confront, not the defined task of proving the employer’s stated reasons to be false, but the amorphous requirement of disproving all possible nondiscriminatory reasons . . . .

Even though the majority restated its acknowledgment in Postal Service Board of Governors v. Aikens, 460 U.S. 711 (1983), of the sensitive and difficult questions for triers of fact in discrimination cases, and the fact that there is seldom eyewitness testimony as to the employer’s mental processes, the dissent emphatically felt that the majority opinion would have the effect of raising the burden for the plaintiff as opposed to merely clarifying it, as stated by Justice Scalia in the majority opinion.

As always, the employee maintains the burden of proof in establishing a prima facie case of discrimination utilizing the four-part test in McDonnell. Once that burden is met, if the employer advances any legitimate, non-discriminatory reasons for the adverse action, the burden returns to the plaintiff to prove that the real reason was discrimination. The McDonnell Douglas "show pretext or discrimination" standard is now the "show pretext and discrimination" standard.

IV.KOLSTAD

In Kolstad, the Supreme Court decided the issue of the circumstances under which punitive damages may be awarded.

The Court held that the language of the Civil Rights Act of 1991 allowing punitive damages under Title VII in cases where an employer has engaged in intentional discrimination "with malice" or reckless indifference to the federally protected rights of an aggrieved individual did not require a finding of "egregious" conduct. Rather, the terms "malice" or "reckless indifference" pertain to the employer's knowledge that it may be acting in violation of federal law, not its awareness that it is engaging in discrimination.

The Court went further to state that once the requisite state of mind is shown, the plaintiff must then go on to impute liability for punitive damages to the employer. The Court analyzed the theories of agency principles regarding vicarious liability, contrasting them with the intent of Title VII to encourage employers to adopt and implement antidiscrimination programs. It found that a strict application of vicarious liability principles in Title VII cases might reduce the incentive for employers to implement such programs and would operate contrary to the prophylactic purpose of Title VII. The Court held that an employer may not be vicariously liable for the discriminatory employment decisions of managerial agents where these decisions are contrary to the employer's good faith efforts to comply with Title VII.

V. APPLICATION TO PROMOTION CASES

The framework established in McDonnell Douglas and clarified in St. Mary’s has been applied with appropriate modifications to cases involving the denial of promotions.

A.In Evans v. Technologies Applications & Service Co., 80 F.3d 954 (4th Cir. 1996), the court found that when there are stated qualifications for promotion, the plaintiff must establish that she was better qualified for the position than the person selected. Ms. Evans was initially hired as a temporary worker and two months later became a full-time employee. She received good evaluations, which described her as an excellent employee, but also indicated that her attitude and "moodiness" would affect her promotability. She also received a reprimand for squabbling on the job. Several personnel changes took place, some for financial reasons, which resulted in a supervisory opportunity being offered to another employee. The plaintiff did not have a chance to apply for the supervisory position. In response to the plaintiff’s discrimination charge, the employer pointed out the shortcomings noted on plaintiff’s evaluations and offered evidence that the selected individual’s qualifications were better suited to the new position. The court found that Ms. Evans failed to demonstrate that she was more qualified than the selected employee and went further to state that, because the person who hired the plaintiff was the same person who failed to promote her, there is a powerful inference that this action was not motivated by discriminatory animus. Evans at 959 (citing Proud v. Stone, 945 F.2d 796 (4th Cir. 1991) (emphasis added)).

B.In Lyoch v. Anheuser-Busch Co., 139 F.3d 612 (8th Cir. 1988), the court found that the employee had presented sufficient evidence to raise a factual issue as to whether she was qualified for a promotion by offering evidence of good evaluations and recommendations for promotions by a supervisor; testimony from someone who worked closely with her that she was qualified for the promotion; and finally, that Anheuser-Busch’s promotion policy was informal and subjective. The court held that "a plaintiff alleging a prima facie case of failure to promote should not bear the same burden when the criteria are subjective and the process vague and secretive as when the case involves objective hiring criteria applied to all applicants." Id. at 615 (internal quotations omitted).

C. In Carey v. Mt. Desert Island Hospital, 156 F.3d 31 (1st Cir. 1997), the court applied the analyses of McDonnell Douglas and St. Mary's and determined that the plaintiff could use the same evidence to prove pretext and discrimination.

The plaintiff, a male, was employed as Vice President of Finance at a community hospital. The chairperson of the Board of Trustees and the professional recruiter engaged to find a CEO were both female. Mr. Carey applied for the position of CEO and was told that he would not be considered. Mr. Carey was discharged following an audit of his department which identified areas needing to be rectified. The court found that Carey's assertion that the employer’s offer of proof that it relied on the audit was a pretext was neither unsupported or unfounded. Using St. Mary's, the Court stated that Carey's next step would be to introduce evidence that the justification was a pretext for anti-male animus. The Court then looked at circumstantial evidence which could point to evidence of gender discrimination. The Court considered evidence such as the fact that a first draft of a Mission Statement for the hospital barred the employment of men; the Director of Nursing stated that the hospital had different standards for men and women; the person in charge of identifying a prospective CEO stated that they would very much like to put a woman in that position. The Court found that the statements and incidents related to a group of top officials and that therefore there was sufficient evidence to find gender discrimination.

D. In Arrington v. Cobb County, 139 F.3d 865 (11th Cir. 1998), the plaintiff was a female employed by the county fire department for over twenty years. She began working in the department before women were allowed to become firefighters. She became a firefighter when the prohibition against women was lifted in 1980, but she never took an active firefighting position. In 1984, she was promoted to Assistant Chief for Administration. The Fire Chief stated that she was chosen based on her examination, excellent job performance and her knowledge of fire department operations and administration. A management study of the department done in 1992 stated that the plaintiff was performing both administrative and operational decisions. The Chief responded to the study by acknowledging that the plaintiff was performing operational responsibilities and went further to state that he had made her the de facto head of the department in his absence. When the Chief retired the department was reorganized. The plaintiff applied for promotion to chief. According to the person with responsibility for selecting the Chief, the plaintiff was not promoted based on her lack of operational experience. Under the reorganization the plaintiff’s current position was consolidated with another existing position into a newly created Deputy Chief position. The plaintiff applied for the Deputy Chief position, but was not selected. The new Chief stated that he passed over the plaintiff due to her lack of operational experience in fighting fires. The reorganization resulted in the plaintiff’s demotion and she filed suit alleging gender discrimination based on (1) denying her the Chief position, (2) denying her the Deputy Chief position, and (3) demoting her to Lieutenant. The court remanded the issue of promotion back to the trial court to hear evidence based on plaintiff’s claim of violation of her fourteenth amendment rights pursuant to § 1983. The court found that the plaintiff had introduced sufficient evidence, including statements from her former supervisor, to call in to question the department’s explanations for its behavior. The court held that the plaintiff had produced sufficient evidence undermining the department’s explanation that a reasonable jury might infer intentional discrimination in violation of Title VII.

E. Fisher v. Vassar College, 114 F.3d 1332 (2d Cir. 1997), involved a tenure decision. The appellate court, in reversing the district court finding of age and sex plus marriage discrimination, held that a finding of discrimination is reviewable on appeal for clear error. The plaintiff devoted about eight years to her family after receiving her Ph.D. degree. She was hired in a tenure-tract position in 1980 and evaluated for tenure in the 1984-1985 academic year. The Biology Department committee of three men and two women found her deficient in all four areas of review: scholarship, teaching, leadership, and service to Vassar and unanimously voted to deny tenure. She was denied tenure at all remaining levels of review. After rejection of her appeal she left Vassar in 1986.

The court discussed the issue of pretext at great length, finding that while sometimes an employer’s proffered reason is a mask for unlawful discrimination, discrimination is not the reason behind every inaccurate statement. The court noted other purposes for hiding reasons, such as back-scratching, log-rolling, horse-trading, institutional politics, envy, nepotism, spite, or personal hostility. The court also noted that when there are numerous participants in the decision-making process, each could have individual reasons for rejecting a plaintiff and it is likely that some of those may differ from the reason officially given by the institution. The opinion found that when there are many possible reasons for the false explanation and illegal discrimination is no more likely a reason than others, pretext gives only minimal support to a discrimination claim.

The court held that a prevailing plaintiff must show that the employer’s proffered reasons are a pretext for discrimination either because the pretext finding itself points to discrimination or because other evidence points to discrimination or both.

VI.REDUCING OPPORTUNITY BARRIERS AND AVOIDING LIABILITY UNDER TITLE VII

A. Essential to the elimination of opportunity barriers is a workable nondiscrimination policy which includes strong language regarding promotions.**

Enforcing such a policy serves at least three purposes: (1) provides for an environment where employment actions are based on legitimate factors, (2) assures compliance with all applicable laws, and (3) demonstrates a good faith effort to comply with Title VII under Kolstad, for those employers subject to punitive damage awards.

B. With the current trend to "diversify" the workplace with emphasis on hiring goals and "stepped up"

recruitment efforts, it might be easy to overlook what could be happening in the area of career advancement.

Administrators should be educated on appropriate methods of

questioning applicants for promotion since the hiring administrator most often is the source of much of the

circumstantial evidence provided in disparate treatment cases. They should understand that questions should be related to the applicant’s ability to perform the functions of the position. Supervisors should be encouraged to contact Human Resource or

______

**For an extensive list of recommendations regarding non-discrimination policies in higher education, seeMary Ann Connell & Edward N. Stoner, II, Burlington, Faragher, Oncale & Beyond: Recent Developments in Title VII/Title IX Jurisprudence (presented at the Law and Higher Education Mid-Winter Conference).

Equal Opportunity staff with questions about inappropriate inquiries during the promotion process. Human Resource and Equal Opportunity staff should be direct in communicating that some statements are never appropriate (i.e., “This position is better for a man because . . .” or “you might not want to take this job because you have small children.”). Any statement related to gender which alludes to its affect on

the applicant’s ability to perform the duties of the position will likely be interpreted as discriminatory if the applicant is not selected.

C. Notwithstanding holdings such as that in Evans which allude to a powerful inference of nondiscrimination when the person who initially hires is the decision-maker on promotion. A close eye should be kept on departments that cluster women into particular positions. Do there appear to be “men’s jobs” and “women’s jobs”?