Tagged: McDonnell Douglas tripartite formula

“Neither Congress nor the Supreme Court distinguishes between direct and circumstantial evidence for the purpose of proving violations of discrimination laws.”

The Court in Desert Palace emphasized the value of both direct and circumstantial evidence. “The reason for treating circumstantial and direct evidence alike is both clear and deep rooted: ‘Circumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence.'” Desert Palace, 539 U.S. at 100 (quoting Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 508 n.17 (1957)).

[The Court] ha[s] often acknowledged the utility of circumstantial evidence in discrimination cases. For instance, in Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000), [the court] recognized that evidence that a defendant’s explanation for an employment practice is “unworthy of credence” is “one form of circumstantial evidence that is probative of intentional discrimination.” Desert Palace, 539 U.S. at 99-100 (quoting Reeves, 530 U.S. at 147). If, as Desert Palace posits, circumstantial is sometimes better suited than direct evidence to provide the most thorough account of the truth, a “direct evidence-only” rule can operate to hamper courts in search of that truth. This is especially true when “the direct evidence of a positive eyewitness can be quite undone by contradictory circumstantial evidence.”

Source: Brief of Amici Curiae Lawyers’ Committee for Civil Rights Under Law; Asian American Justice Center;Mexican American Legal Defense and Education Fund; National Partnership for Women & Families; and National Women’s Law Center in Support of Petitioner in Gross v. FBL Financial Services, inc. No. 08-441.

“[E]vidence of employer dishonesty is not required by Title VII itself. The statute requires only that a plaintiff demonstrate that her employer’s decision was taken ‘because of race, sex or some other prohibited characteristic.’ In spite of using some language suggesting that dishonesty is an element of a discrimination claim, the Supreme Court has never held that evidence of mendacity is the only form of proof available to a Title VII plaintiff. In fact, in one of its more recent opinions construing Title VII, the Court noted that evidence suggesting a defendant’s explanation for an employment practice is ‘unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination.’ As the Court recognized, a plaintiff does not have to prove that her employer lied in order to raise a reasonable inference that discrimination played a role in the decision.”

Source: William R. Corbett, Unmasking A Pretext For Res Ipsa Loquittur: A Proposal To Let Employment Discrimination Speak For Itself. 62 Am. U. L. Rev. 447, 451 2013.

“A plaintiff may present evidence about the make-up of the employer’s workforce that suggests an unwillingness to hire minorities or women or a tendency to segregate them into lower-status jobs.”

See, e.g., Simms v. Oklahoma, 165 F.3d 1321, 1328 (10th Cir. 1999); Colon-Sanchez v. Marsh, 733 F.2d 78, 81 (10th Cir. 1984); Aracne v. Lucky Stores Inc., No. C81394RPA, 1983 WL 495, at *4 (N.D. Cal. Mar. 4, 1983) (stating that the plaintiff provided evidence that the employer had not hired any new women to work in his plant from 1974 to 1983).

Source: William R. Corbett, Unmasking A Pretext For Res Ipsa Loquittur: A Proposal To Let Employment Discrimination Speak For Itself. 62 Am. U. L. Rev. 447, 451 2013.

“Although intermediate evidentiary burdens shift back and forth under this framework, ‘[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.’”

Source: Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 143 (2000).

“That the burden of persuasion never shifts is due to the relatively weak showing required of a plaintiff in order to make out a prima facie case under McDonnell Douglas.” — Jason R. Bent

Where a higher initial showing is made by the plaintiff, the “strong medicine” of a shift in the burden of persuasion can be justified. See Price Waterhouse, 490 U.S. at 262 (O’Connor, J., concurring).

“[O]ur decisions in Teamsters and Franks do indicate a recognition that presumptions shifting the burden of persuasion based on evidentiary probabilities and the policies behind the statute are not alien to our Title VII jurisprudence.” See Price Waterhouse, 490 U.S. at 267 (O’Connor, J., concurring)

“[Marcus Isaiah Washington] satisfies the prima facie test, with impressive qualifications (University of Miami accelerated graduation and a master’s degree by age 23) and some initial successes in the industry before working for [the William Morris Agency].” — Arbitrator David L. Gregory’s Partial Final Award, December 17, 2013. pg. 8

two methods of proving employment discrimination.

A plaintiff can prove discrimination in either of two ways: by demonstrating an individual instance of discrimination directed at the plaintiff, or by showing a pattern of discrimination by the defendant directed generally against a particular group (disparate treatment and disparate impact). Since a single incident of discrimination can be subtle and the evidence required to prove it primarily inferential, plaintiffs generally choose to show a pattern of discrimination. Employment practices that appear neutral in their treatment of individuals, may impact more severely on protected groups and may not be justified by business necessity. The foundation for such a disparate impact case is often a showing that minorities or women are concentrated in certain positions, or practically absent in other positions. In order to establish a prima facie case, plaintiff may use statistical proof alone. The comparison must be made between the racial composition of the persons holding at-issue positions and the populations of qualified persons in the relevant labor market.

Once a statistical disparity is shown, the plaintiff has the burden of demonstrating that the disparity is the result of one or more of the alleged, discriminatory employment practices of the defendant. If the employer successfully establishes a business necessity defense, the plaintiff can still prevail by demonstrating the justification is inadequate or by identifying alternatives to the employer’s practices that meet the employer’s legitimate objectives, but which do not have the undesirable disparate impact.

Source: Larry Varn. Pattern Discovery: Employment Discrimination. 2013.