In discrimination cases filed under Title VII of the Civil Rights Act of 1964, first, the employee must establish a prima facie (minimally sufficient) case of discrimination. Once he does that, the burden shifts to the employer to produce evidence that he was rejected or someone else was preferred for a legitimate, nondiscriminatory reason. This is frequently referred to as the McDonnell Douglas
framework.
It’s important to note that the burden is one of production, not of persuasion, and generally involves no credibility assessment. Finally, once the employer produces sufficient evidence to support a legitimate, nondiscriminatory explanation for its decision, the employee gets the opportunity to prove by a preponderance of the evidence that the employer’s reasons weren’t true but were a pretext for discrimination.
When responding to a discrimination claim, an employer can ask three relatively simple questions that may very well lead to full, complete, and dispositive — though sometimes overlooked — defenses to the lawsuit. The questions, which most frequently arise in the third stage, or “pretext” stage, of the McDonnell Douglas analysis, are:
- Who hired the employee in the first place?
- Who participated in the alleged adverse employment action?
- Who is named as the respondent in the Equal Employment Opportunity Commission (EEOC) discrimination charge?
Audio Conference: How to Manage and Survive an EEOC Investigation: Legal and Practical Solutions for HR
Who hired the employee?
The first question involves the identity of the person who made or was charged with making the hiring decision in the first place and the decision’s timing. In a number of cases, the person who hires an employee is ultimately the same person who allegedly discriminated against him through some later adverse employment action.
If both the hiring and the adverse employment action (by the same person) happen within a brief period of time, it may raise an extremely helpful inference that the adverse employment action was legitimate. In a 1991 case (Proud v. Stone), the Fourth U.S. Circuit Court of Appeals stated:
The relevance of the fact that the employee was hired and fired by the same person within a relatively short time span comes at the third [pretext] stage of the [McDonnell Douglas] analysis. . . . [T]his fact creates a strong inference that the employer’s stated reason for acting against the employee is not pretextual. The plaintiff still has the opportunity to present countervailing evidence of pretext, but in most cases involving this situation, such evidence will not be forthcoming. In short, employers who knowingly hire workers within a protected group seldom will be credible targets for charges of pretextual firing. Proud v. Stone, 945 F.2d 796, 798 (4th Cir., 1991).
HR Guide to Employment Law: A practical compliance reference manual covering 14 topics, including discrimination
Who participated in the adverse employment decision?
The second question involves the identity of the person who made or was charged with making the allegedly adverse employment decision and, again, a review of the decision’s timing. In short, who was the actual decisionmaker when it comes to the allegedly discriminatory acts?
Because the employee usually relies on indirect evidence and statements attributable to other employers or supervisors in proving his discrimination claims, our courts have determined that the requisite discriminatory animus must come from one or more persons who actually influenced, whether in whole or in part, the alleged discriminatory action:
To demonstrate such an intent to discriminate on the part of the employer, an individual alleging disparate treatment based upon a protected trait must produce sufficient evidence upon which one could find that “the protected trait . . . actually motivated the employer’s decision.” The protected trait “must have actually played a role in the employer’s decisionmaking process and had a determinative influence on the outcome.” Hill v. Lockheed Martin Logistics Mgmt., 354 F.3d 277, 286 (4th Cir., 2004) (internal citations omitted).
Several years earlier, U.S. Supreme Court Justice Sandra Day O’Connor, in a separate concurring opinion, explained that “statements by nondecisionmakers, or statements by decisionmakers unrelated to the decisional process itself [do not] suffice to satisfy the plaintiff’s burden” of proving discrimination.
Instead, the relevant inquiry is whether the decisionmaker, as opposed to other managers or subordinates, evaluated the employee based on some discriminatory criteria. Accordingly, the employee’s failure to identify the right persons could prove fatal to his discrimination claim. Price Waterhouse v. Hopkins, 490 U.S. 228, 241, 104 L. Ed. 2d 268, 109 S. Ct. 1775 (1989).
Basic Training for Supervisors: Easy to read guides for supervisors to avoid legal hazards, including workplace discrimination
Who is named as the respondent in the EEOC charge?
The third question involves the identity of the person the employee actually named as the respondent-employer in the EEOC discrimination charge. While it may seem like an elementary inquiry, the failure to identify a party as a respondent in an EEOC discrimination charge may preclude the employee from naming the party as a defendant in a later lawsuit. In a 1984 opinion, U.S. District Court Judge Matthew J. Perry, Jr., explained:
An aggrieved party is required to proceed through the conciliation process of [the] EEOC prior to [filing] a lawsuit. However, a party not named as respondent in the EEOC charge does not have notice of the EEOC proceeding nor the opportunity to participate in the conciliation procedures conducted by [the] EEOC. Therefore, to make unnamed respondents to the EEOC charge parties to a Title VII lawsuit based upon that EEOC complaint would circumvent the Congressional mandate.
Consequently, the naming of [other defendants not named in the EEOC charge] in this complaint runs counter to the expressed intent of Congress. The individual defendants’ [request] to dismiss [the] plaintiff’s claims insofar as they are based on Title VII is granted. Culler v. South Carolina Dep’t of Social Services, 1984 U.S. Dist. LEXIS 20325, 22-23 (D.S.C., 1984)(internal citations omitted).
Bottom line
While evidentiary burdens shift back and forth between the employee and employer under the McDonnell Douglas framework, the ultimate burden of persuading the trier of fact that the employer intentionally discriminated against the employee remains at all times with the employee. Nevertheless, the prudent employer will take advantage of every possible defense available — even those that may otherwise be overlooked for failure to ask some of the most basic questions.