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EEO: Disparate Treatment

Title VII prohibits employers from treating applicants or employees differently because of their membership in a protected class. The central issue is whether the employer's actions were motivated by discriminatory intent, which may be proved by either direct or circumstantial evidence.

Direct Method

Under the direct method, a plaintiff attempts to establish that membership in the protected class was a motivating factor in the adverse job action. Plaintiff may offer direct evidence, such as that the defendant admitted that it was motivated by discriminatory intent or that it acted pursuant to a policy that is discriminatory on its face. In most cases, direct evidence of discrimination is not available, given that most employers do not openly admit that they discriminate. Facially discriminatory policies are only permissible if gender, national origin, or religion is a BFOQ for the position in question, as discussed above. Race or color may never be a BFOQ.

A plaintiff may also proceed under the direct method by offering any of the following three types of circumstantial evidence. The first type consists of "suspicious timing, ambiguous statements oral or written, behavior toward or comments directed at other employees in the protected group, and other bits and pieces from which an inference of discriminatory intent might be drawn." Troupe v. May Department Stores, 20 F.3d 734, 736 (7th Cir. 1994). The second type is evidence that other, similarly-situated employees not in the protected class received systematically better treatment. Marshall v. American Hospital Assoc., 157 F.3d 520 (7th Cir. 1998). The third type is evidence that the plaintiff was qualified for the job, a person not in the protected class got the job, and the employer's stated reason for its decision is unworthy of belief. Id. This third type of circumstantial evidence is substantially the same as the evidence required by the McDonnell Douglas method described below.

Direct Method - Burden-Shifting

In the majority of cases, the plaintiff lacks direct evidence of discrimination and must prove discriminatory intent indirectly by inference. The Supreme Court has created one structure for analyzing these types of cases, commonly known as the McDonnell Douglas burden-shifting formula, which it first articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and later refined in Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981), and St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). The analysis is as follows: (1) the plaintiff must establish a prima facie case of discrimination; (2) the employer must then articulate, through admissible evidence, a legitimate, nondiscriminatory reason for its actions; and (3) in order to prevail, the plaintiff must prove that the employer's stated reason is a pretext to hide discrimination. McDonnell Douglas, 411 U. S. at 802-04; Burdine, 450 U.S. at 252-56. In the Seventh Circuit, courts generally analyze disparate treatment cases using this method, although attorneys may also use the direct method described above.

• Prima facie case: The elements of the prima facie case are: (i) the plaintiff is a member of a protected class; (ii) the plaintiff applied and was qualified for the job; (iii) the application was rejected; and (iv) the position remained open after the rejection. Hicks, 509 U.S. at 505-507. In a termination case, the second element is whether the plaintiff was performing up to the employer's legitimate expectations. Coco v. Elmwood Care, Inc., 128 F.3d 1177, 1178 (7th Cir. 1997).

  "The burden of establishing a prima facie case of disparate treatment is not onerous." Burdine, 450 U.S. at 253. Establishment of a prima facie case creates an inference that the employer acted with discriminatory intent. Id. at 254.

  Although establishing a prima facie case used to be fairly routine, the courts have recently begun scrutinizing the second element of the test more rigorously. See, e.g. Cengr v. Fusibond Piping Systems, Inc., 135 F.3d 445 (7th Cir. 1998); Fisher v. Wayne Dalton Corp., 139 F.3d 1137 (7th Cir. 1998).

• It is the role of the judge, not the jury, to determine whether the plaintiff has stated a prima facie case. Achor v. Riverside Golf Club, 117 F.3d 339, 340 (7th Cir. 1997).

• Employer's burden of production: In order to rebut the inference of discrimination, the employer must articulate, through admissible evidence, a legitimate, non-discriminatory reason for its actions. The employer's burden is one of production, not persuasion; the ultimate burden of persuasion always remains with the plaintiff. Hicks, 509 U.S. at 511.

• Plaintiff's proof of pretext: Proof that the defendant's asserted reason is untrue permits, but does not require, a finding of discrimination. St. Mary's Honor Center v. Hicks, 509 U.S. at 511; Anderson v. Baxter Healthcare Corp., 13 F.3d 1120, 1123 (7th Cir. 1994). The Seventh Circuit has held in one case that where the defendant asserts several reasons for its decision, the plaintiff may not normally survive summary judgment by refuting only one of the reasons. Coco v. Elmwood Care, Inc., 128 F.3d 1177, 1178 (7th Cir. 1997). In another case, the court held that plaintiff need not rebut all of defendant's reasons but must instead show that defendant's decision was based on a prohibited factor. Monroe v. Children's Home Ass'n, 128 F.3d 591, 593 (7th Cir. 1997).

  In addition to producing evidence of the falsity of the employer's proffered reason, the plaintiff may also attempt to prove pretext using: comparative evidence; statistics; or direct evidence of discrimination. Pollard v. Rea Magnet Wire Co., 824 F.2d 557, 558 (7th Cir. 1987), cert. denied, 484 U.S. 977 (1987); Barbara Lindemann and Paul Grossman, 1 Employment Discrimination Law 27 (3d ed. 1996).

• • Comparative evidence Plaintiff may prove pretext by offering evidence that similarly situated employees who are not in the plaintiff's protected group were treated more favorably or did not receive the same adverse treatment. The Seventh Circuit has issued differing opinions on whether the plaintiff's testimony about the comparative employees is sufficient to raise a factual issue and survive summary judgment. For example, in Collier v. Budd Co., 66 F.3d 886 (7th Cir. 1995), the employer offered evidence that the younger employees who were retained were better qualified than the plaintiff. In his deposition, the plaintiff disputed that these employees were better qualified. The court said that the resulting credibility decision was best left for the trier of fact, and reversed a summary judgment ruling for the employer. Collier at 893. On the other hand, in Russell v. Acme-Evans Co., 51 F.3d 64 (7th Cir. 1995), the court held that the plaintiff's testimony regarding the qualifications of the workers who were given the positions that plaintiff wanted was insufficient to create a factual issue and survive summary judgment given that the employer had stated that they were more qualified.
  • Statistics Statistics are admissible in individual disparate treatment cases, but their usefulness depends on their relevance to the specific decision affecting the individual plaintiff. Lindemann and Grossman, 1 Employment Discrimination Law 34.
  • Direct evidence Although direct evidence of discrimination can be very powerful, courts often give little weight to discriminatory remarks made by persons other than decision makers, "stray" remarks not pertaining directly to the plaintiffs, or remarks that are distant in time to the disputed employment decision. See, e.g., McCarthy v. Kemper Life Ins. Cos., 924 F.2d 683, 687 (7th Cir. 1991) (discriminatory remarks by a fellow employee are not evidence of discriminatory discharge because they were not made by a decision maker and the remarks occurred two years before the discharge); Cowan v. Glenbrook Security Services, Inc., 123 F.3d 438, 444 (7th Cir. 1997) ("[S]tray remarks . . . cannot justify requiring the employer to prove that its hiring or firing or promotion decisions were based on legitimate criteria. Such remarks . . . when unrelated to the decisional issue process, are insufficient to demonstrate that the employer relied on illegitimate criteria, even when such statements are made by the decision maker").

• Instructing the jury If the case goes to a jury, the elaborate McDonnell Douglas formula should not be part of the jury instructions. See Achor v. Riverside Golf Club, 117 F.3d 339, 340 (7th Cir. 1997). The ultimate question for the jury is whether the defendant took the actions at issue because of the plaintiff's membership in a protected class. Id. at 341.

Mixed Motives

The plaintiff in a disparate treatment case need only prove that membership in a protected class was a motivating factor in the employment decision, not that it was the sole factor. If the employer proves that it had another reason for its actions and it would have made the same decision without the discriminatory factor, it may avoid liability for monetary damages, reinstatement or promotion. The court may still grant the plaintiff declaratory relief, injunctive relief, and attorneys' fees and costs. 42 U.S.C. � 2000e-5(g)(2)(B)(i) (overruling in part Price-Waterhouse v. Hopkins, 490 U.S. 228 (1989)).

The Seventh Circuit recently held that in a mixed motives retaliation case, the plaintiff is not entitled to declaratory relief, injunctive relief, or attorneys fees because retaliation is not listed in the mixed motives provision of the 1991 Civil Rights Act. McNutt v. Board of Trustees of the University of Illinois, 141 F.3d 706, (7th Cir. 1998).

After-Acquired Evidence

If an employer takes an adverse employment action against an employee for a discriminatory reason and later discovers a legitimate reason which it can prove would have led it to take the same action, the employer is still liable for the discrimination, but the relief that the employee can recover may be limited. McKennon v. Nashville Banner Publishing Co., 513 U.S. 352 (1995). In general, the employee is not entitled to reinstatement or front pay, and the back pay liability period is limited to the time between the occurrence of the discriminatory act and the date the misconduct justifying the job action is discovered. McKennon, 513 U.S. at 361-62.

Pattern or Practice Discrimination

In class actions or other cases alleging a widespread practice of intentional discrimination, plaintiffs may establish a prima facie case using statistical evidence instead of comparative evidence pertaining to each class member. Teamsters v. United States, 431 U.S. 324 (1977). Plaintiffs often combine the statistical evidence with anecdotal or other evidence of discriminatory treatment. See, e.g., EEOC v. O & G Spring & Wire Forms Specialty Co., 38 F.3d 872, 874-75 (7th Cir. 1994) (plaintiff's statistical evidence was corroborated by anecdotal evidence and hiring records). The employer can rebut the prima facie case by introducing alternative statistics or by demonstrating that plaintiff's proof is either inaccurate or insignificant. Teamsters, 431 U.S. at 339-41. The plaintiff then bears the burden of proving that the employer's information is biased, inaccurate, or otherwise unworthy of credence. Coates v. Johnson & Johnson, 756 F.2d 524, 544 (7th Cir. 1985).