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What Does Climbing the St. Louis Arch have to do with Proving Discrimination?

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Learning discrimination law basics from a classic civil rights story.

Discrimination laws apply to recruiters, and their actions on behalf of clients. In this article I explain how courts analyze claims of discrimination. In doing so, I hope to help recruiters better understand the risks of employment discrimination litigation and how to best reduce those risks.

I’ll explain “disparate treatment,” the most common way to prove discrimination, by stepping back to an earlier era and a much different America, in which civil rights protests were marked by bold acts of civil disobedience in the face of blatant governmental and corporate racism. The legal principles we’re governed by today were shaped by this not-so-distant history.

Sixties activism sets the stage

The story starts in St. Louis in 1964-65. Title VII of the Civil Rights Act of 1964 is brand new. It outlaws racial discrimination in employment, which had previously been perfectly legal — and quite common. The hero of the story is a local civil rights activist named Percy Green.

In July 1964, he climbs 125 feet up the Gateway Arch, still under construction by the National Parks Service, to protest the lack of African-American workers on the project. The daring stunt gains national publicity, and promptly results in the hiring of African-American general contractors and craftsmen for completion of the Arch project.

At the time of his Arch protest, Green is one of a handful of skilled African-American employees of aerospace and aircraft manufacturer McDonnell Douglas in St. Louis. He has about eight years’ seniority. The month after he climbs the Arch, Green is laid off. Fourteen white employees with less seniority are retained.

Green and other members of the Congress on Racial Equality (CORE) begin protesting his layoff and the company’s hiring practices, which they believe are racially discriminatory. They use classic civil disobedience tactics, including a “stall-in,” in which they park cars across plant entrance roads, blocking employee traffic during morning rush hour, and then peacefully surrender to police. Another civil rights group, which Green chairs, stages a “lock in,” preventing company workers from leaving an office building by padlocking its entrance.

About a year after his layoff, Green responds to a McDonnell Douglas job advertisement. He is well qualified for the position due to his prior employment with the company. However, the company refuses to hire Green because of his involvement in the “stall-in” and “lock in.”

In response to McDonnell Douglas’s refusal to hire him, Green files a charge with the Equal Employment Opportunity Commission (EEOC), followed by a federal lawsuit that works its way up to the United States Supreme Court, which is just beginning to put flesh on the bones of Title VII.

The Supreme Court establishes the disparate treatment analysis

Eight long years passed. Finally, in 1973, the Supreme Court decided Green’s case. The decision, McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), became such a judicial landmark that even today courts cite it hundreds of times a year for its announcement of the following three-step analysis:

  1. The court first looks at whether the person claiming discrimination has made a prima facie case. If not, the case is subject to dismissal without the employer presenting any evidence of its own. According to the McDonnell Douglas decision, a prima facie case of racial discrimination in hiring requires proof that the person:
    1. belongs to a racial minority;
    2. applied and was qualified for an open position, and was rejected.
  2. If it finds a prima facie case, the court then proceeds to the second part of the analysis, in which it looks at whether the employer stated a legitimate, nondiscriminatory reason for the rejection.
  3. Finally, if the employer stated such a reason, the court determines whether there is evidence it was not the true reason, but instead was a pretext to cover up discrimination.

In Green’s case, the Supreme Court found that he established a prima facie case of racial discrimination. It also acknowledged that McDonnell Douglas stated a legitimate, nondiscriminatory reason for not hiring Green – his participation in protests that interfered with company operations. With steps 1 and 2 satisfied, the Supreme Court sent the case back to the lower court to allow Green to prove that the company’s stated reason was just a pretext for discrimination.

Proving pretext

The Supreme Court suggested Green could satisfy this requirement of proving pretext with evidence that:

  1. White McDonnell Douglas employees involved in misconduct of comparable seriousness were nevertheless retained or re-hired;
  2. The company treated him discriminatorily during his prior employment;
  3. The company also reacted negatively to his lawful civil rights activities; and,
  4. There were statistical differences in hiring practices between black and white employees. Since McDonnell Douglas Corp. v. Green, courts have recognized other ways of proving pretext, including pointing to inconsistencies and changes over time in the company’s reason, and otherwise showing it to be unreasonable or untrue.

The retaliation subplot

It may seem obvious that a company would fire (or not rehire) an employee, regardless of race, for deliberately jamming plant traffic at starting time or padlocking office doors, so obvious as to leave you wondering why Green pursued the case so far.

One explanation lies in Green’s alternative claim that in not hiring him McDonnell Douglas violated Title VII’s prohibition of retaliation because an individual has “opposed” unlawful discrimination. Green’s position was that his nonviolent, albeit illegal, acts of civil disobedience qualified as opposition to discrimination that deserved protection under this section.

This was not an entirely frivolous position, particularly since such acts had characterized the civil rights movement that gave rise to the passage of key federal civil rights legislation, including Title VII itself. In fact, it may well have been the position in which Green and his attorney were originally most interested in pressing.

However, if Green ever had a chance of prevailing on this position, it was likely extinguished by the extensive racial violence that plagued the years between his non-hiring and the Supreme Court’s decision. Ironically, this frightening era of race relations began about a month after Green’s non-hiring, with the six-day Watts riot in Los Angeles, which left 34 dead and over 1,000 injured. It also included the founding in 1966 of the militant Black Panther Party and the assassination in 1968 of Dr. Martin Luther King, Jr., among many other racially polarizing events.

Through it all, Green continued to peacefully pursue justice through the court system. Although his activities paled in comparison to the race riots and the armed resistance advocated by the Panthers, the Weather Underground, and others, by the time the Supreme Court ruled on Green’s case in 1973, most of the nation was in no mood to encourage any kind of illegal protests — even peaceful ones.

Green and his attorney wisely chose not to press this issue at the Supreme Court, though they had done so unsuccessfully in their initial suit and appeal. The Supreme Court simply assumed that Green’s protests were a legitimate reason for not hiring him — provided they were the true reason.  

McDonnell Douglas Corp. v. Green applied to other contexts

Green’s case involved race discrimination in hiring. But the courts quickly adapted and applied its reasoning to other types of discrimination, such as sex and age, and to other types of employment decisions, such as termination.

The elements of the prima facie case vary, depending on the circumstances. Often a prima facie case is established, so the decisive question becomes whether the employer’s stated reason for its decision is believable. If not, a court or jury may find it is merely a pretext and thus conclude discrimination occurred.

Proof of discrimination under the McDonnell Douglas three-step analysis is often referred to as proof through evidence of “disparate treatment” because at its heart is evidence of a difference in treatment that appears to be based on a protected characteristic, such as race. For example, in a racial discrimination hiring case like Green’s, the prima facie case shows this disparate treatment through the fact that a qualified minority applicant was rejected and a white applicant subsequently hired.

Often disparate treatment is further shown at the pretext stage through evidence that the employer gave more favorable treatment to persons not sharing the complaining person’s protected characteristic (for example, in an African-American’s race case, whites), although the reason relied on by the employer applied to them as well. For example, pretext could be proven if the employer said it chose not to hire a black applicant because she had less than five years’ supervisory experience, but it actually hired any number of white employees not meeting this stated requirement.

Practical significance

In the context of recruiting and hiring, the McDonnell Douglas analysis presents a challenge for recruiters because it is relatively easy for a rejected jobseeker to prove a prima facie case, just as it was easy for Green to do. Essentially, a disgruntled candidate need only prove minority status, basic qualifications, and non-hiring.

The best way to challenge a prima facie case is to take the position that the person was not qualified. However, to succeed on this basis, you must be prepared to prove that the qualification they lacked was truly a job requirement. Job descriptions are great for this (unless, of course, the qualification you rely on isn’t in the description, a fact that could be used to show pretext).

You must also be prepared to prove that the qualification requirement was applied across the board, without exception. Unexplained exceptions can be evidence of different treatment supporting a finding of pretext, which allows a finding of discrimination.

The other key piece of the defense of a hiring case under the McDonnell Douglas analysis is the legitimate nondiscriminatory reason for not hiring (or not continuing the recruiting/hiring process).

How will you prove the reason? How will you even know what the reason was?

Success requires meticulous documentation of every step of your recruiting and hiring process. You should have a paper or electronic trail for every person you considered for a position, which will allow you to remember and prove the reason for your decision not to proceed further.

If you lack such a trail, and if the individual was qualified (even if not the most qualified), you will not have a legitimate nondiscriminatory reason for your decision, so a court or jury could decide for the disappointed jobseeker based solely on the prima facie case. It would make no difference that you did not intend to discriminate.

You also need to be prepared to prove that your reason is factually accurate. For example, it is problematic if you claim someone lacked sufficient experience in a particular field, only to have the evidence show that you hired (or referred to your client) someone with even less experience.

Finally, you should be able to provide evidence of how you treated others not sharing the complaining person’s protected characteristic. Showing that you applied the qualification or standard on which you rely evenhandedly to all jobseekers, without regard to their protected characteristic, is the flip side of the Supreme Court’s suggestion that Green might prove pretext by showing more favorable treatment of white employees.

So, Percy Green’s dogged pursuit of equal employment opportunities for African-Americans — reflected in his climbing the Arch and going on to fight a long legal battle all the way to the Supreme Court — left a major legal legacy.

As a result of McDonnell Douglas v. Green, employers and recruiters can quite easily be accused of discrimination and made to convincingly show the reasons for disputed employment decisions. Without taking great care to make fair, objective, and even-handed hiring decisions, and to document the reasons for those decisions, avoiding the snares of the discrimination laws can be as hard as climbing the Arch.

About George Lenard

George Lenard, the originator of George’s Employment Blawg,has over twenty years of experience in all aspects of labor and employment law, including preventive law as well as litigation. His special interests include employment discrimination, sexual harassment, and noncompetition agreements. He is currently a managing partner with Harris, Harris, Dowell, Fisher & Harris, L.C.,., in St. Louis, Missouri, and lives in the suburb of University City with his wife, one daughter and two sons.

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Growth in women's share of science, technology, engineering and mathematics (STEM) occupations declined to 27% in 2011from a high of 34% in 1990. While women make up nearly half of the workforce, they were 26% of the STEM workforce in 2011.

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