Article by Robert Belton
Twenty-five years ago Congress enacted the Civil Rights Act of 1964. Title VII of the Civil Rights Act prohibits employment discrimination on the basis of race, color, sex, religion, or national origin. The first decade of judicial development under Title VII suggested that the judiciary was, at last, willing to require meaningful remedies to eradicate centuries of societal discrimination against blacks and women. Griggs v. Duke Power Co. was the most important Supreme Court decision in this sense. Griggs enunciated the disparate-impact theory of discrimination: Facially neutral employment practices that, in fact, fall more harshly on one group than another are prohibited, unless justified by business necessity. The disparate-impact theory legitimated the use of the affirmative action plan as a remedy for societal discrimination.
The Griggs disparate-impact theory is now being revisited by the Supreme Court. The Court's revisitation has been more akin to a procedural flanking movement than to a substantive frontal attack because it focuses on causation and burden-of-proof issues, rather than overtly substantive issues. Almost a decade ago I noted this development, and commented: “A review of the discrimination cases . . . suggests that the burden of proof issue may well be the battleground upon which some judges are attempting to repudiate the disparate impact theory of discrimination.”
The Supreme Court has been struggling to develop a coherent doctrinal approach to burden-shifting in employment discrimination law since its 1973 decision in McDonnell Douglas Corp. v. Green. McDonnell Douglas differed in several fundamental respects from Griggs: it was a disparate-treatment case in which, unlike a facially neutral disparate-effects case, the employer treated some people less favorably than others because of race, sex, or some other suspect category; in addition, McDonnell Douglas was a single-motive or -pretext case in which the factfinder had to determine whether the motivation for an adverse employment decision was legal or illegal. Despite these differences, in McDonnell Douglas the Court articulated an important burden-shifting rule:
The complainant in a Title VII trial must carry the initial burden under the statute of establishing a prima facie case of racial discrimination. This may be done by showing (i) that he 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 . . . .
The burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason for the employee's rejection.
In Albemarle Paper Co. v. Moody, a 1975 decision, the Court endorsed the application of the McDonnell Douglas burden-shifting rule to disparate-impact claims. The Court's casual treatment of the burden-of-proof issue in McDonnell Douglas and Moody, however, led to a conflict among the circuits on the appropriate burden-shifting rules to apply to the various analytic models of employment discrimination cases, such as single- and mixed-motive cases and the systemic discrimination cases. In a 1981 case, Texas Department of Community Affairs v. Burdine, the Court resolved the conflict on burden-shifting rules in single-motive cases, but uncertainty as to all other categories of cases remained.
Conflict in the circuits was not restricted to burden-shifting issues; McDonnell Douglas and Burdine ushered in a conflict among the circuits regarding causation. In the first case, Mt. Healthy City School District Board of Education v. Doyle, the Court enunciated the “same decision” test of causation. The “same decision” test provides that once the plaintiff has sustained the burden of proving (1) that his conduct was constitutionally protected and (2) that this conduct was a “substantial” or “motivating” factor in the adverse employment decision, the burden then shifts to the employer to show “by a preponderance of the evidence that it would have reached the same decision . . . even in the absence of protected conduct.” In the second case, McDonald v. Santa Fe Trail Transportation Co., the Court implied, but did not expressly decide, that the “but for” test of causation is the standard in Title VII employment discrimination claims. The “but for” test basically requires the plaintiff to show, not that race (or another illegal criteria) was the sole cause of the adverse employment decision, but only that but for his race the decision would not have been adverse. After Santa Fe Trail and Mt. Healthy, doctrinal confusion reigned supreme among the lower courts on causation as well as burden-of-proof questions in employment discrimination cases.
After many years of silence regarding causation and burden-shifting rules, in 1989 the Court, in Price Waterhouse v. Hopkins and Wards Cove Packing Co. v. Atonio, attempted to resolve the confusion over these issues. Hopkins was a Title VII disparate-treatment mixed-motive case. Wards Cove was a Title VII disparate-impact case.
Hopkins and Wards Cove provide an opportunity for revisiting the problematical causation and burden-shifting doctrines, and for examining how enforcement of the national policy against discrimination in employment has been affected by these decisions. Part II of this Article presents an overview of Hopkins and Wards Cove. Part III assesses the prevalent analytic models of employment discrimination in light of Hopkins and Wards Cove.
My overall assessment of Hopkins and Wards Cove is that the conservative majority of the Court is, in these cases, attempting to redefine the Griggs concept of disparate-impact discrimination through manipulation of evidentiary and burden-shifting rules. The driving force for this redefinition is the majority's fundamental objection to affirmative action in any form. This redefinition is unfortunate because the Griggs doctrine has been an effective and powerful tool in remedying discrimination in our society.
About the Author
Robert Belton. Professor of Law, Vanderbilt Law School.
Citation
64 Tul. L. Rev. 1359 (1990)