Race Discrimination: Recent Cases About Shifting Burdens of Proof
Two recent decisions from the Tenth Circuit Court of Appeals (which has jurisdiction over cases from Utah), Martinez v. State of Wyoming and Griffis v. City of Norman, Oklahoma, discuss the evidentiary showing that a victim of alleged racial discrimination in hiring and/or promotion must make in order to survive a defendant employer's motion for summary judgment. In the employment context (and in the absence of "direct" evidence of discrimination), courts routinely use a "McDonnell Douglas" analysis under which the burden of proof shifts between the plaintiff and defendant. Initially, the plaintiff has the burden of proof to demonstrate membership in a protected class and an adverse employment action under circumstances that suggest a discriminatory motive underlying the employer's decision. This initial burden (called a "prima facie" case) is a light one that is easily satisfied.
Once the plaintiff meets this burden, the burden of proof then shifts to the defendant employer, who must articulate a legitimate, non-discriminatory explanation for the challenged decision. This, too, is easily satisfied by evidence regarding the particular requirements of the position and the suitability of the successful applicant for that position. Because courts are generally reluctant to second-guess an employer's personnel decisions, the employer's explanation will usually suffice to shift the burden of proof once again to the plaintiff to show that the proffered explanation is "pretextual" Â– that is, a disguise for unlawful discrimination. Martinez and Griffis are good illustrations of unsuccessful and successful efforts to demonstrate pretext.
In Martinez, the plaintiff alleged that the Wyoming Department of Family Services ("DFS") discriminated against him on the basis of race in failing to hire him as a welfare worker. At the summary judgment stage, the defendant claimed that the successful applicants for the DFS vacancies were better qualified than the plaintiff in terms of education and experience. A three-member panel of DFS supervisors interviewed each applicant. The plaintiff was an Hispanic male high school graduate who had some typing and computer experience, and had previously worked in an auto body shop. In contrast, the three successful white applicants each had relevant work experience and/or college education, which made them more qualified for the position than plaintiff. The court affirmed summary judgment in favor of the defendant agency, finding that the plaintiff's subjective belief that he was better qualified that the successful applicants was insufficient to overcome the defendant's legitimate, non-discriminatory explanation for its hiring decisions.
Conversely, in Griffis, the court rejected the defendant City's proffered explanation for the failure to promote the plaintiff within the City's Police Department. As in the Martinez case, the defendant employer asserted that the successful candidate for promotion was better qualified than was the plaintiff. The City explained that its five-member interview board had reviewed the candidates' written applications and conducted oral interviews before determining that a white candidate was best qualified for an opening as Records Supervisor. The white candidate selected by the interview board had worked for the city for only five months and was at that time employed as a probationary records clerk trainee.
The plaintiff, who was black, had worked for about seven years as a records clerk under the direct supervision of the retiring Records Supervisor. The plaintiff had over twenty years of relevant work experience, and had routinely filled in for the Records Supervisor during her absences for maternity, vacation and illness. In defense of its personnel decision, the City asserted the plaintiff had "performance deficiencies" relating to her brief employment as a radio dispatcher for the Police Department. Police officers had complained that they could not understand the plaintiff's "black accent," and, as a result, the plaintiff had been transferred to the Records Department.
On appeal from summary judgment in favor of the City, the Tenth Circuit rejected the City's proffered explanation as "pretextual" where there was no evidence whatsoever that the claimed language difficulties would interfere in any way with the plaintiff's fulfillment of her duties as Records Supervisor, if she were promoted. The court determined that the evidence clearly showed that that the plaintiff was, in fact, more qualified for promotion than the successful candidate, and reversed and remanded the case to the trial court.
These cases illustrate the importance of making personnel decisions based on a principled, non-discriminatory examination of the relative qualifications of all applicants for a vacancy or promotion. While courts are reluctant to act as "super-personnel department[s] that second-guess employers' business judgments," "[w]here an employer contends that the plaintiff was not as qualified as the successful candidates, pretext can be inferred from evidence that plaintiff was in fact more qualified than those chosen." Implementation of a purportedly objective screening mechanism, such as the interview panels described above, does not operate to relieve an employer from its obligations under Title VII, or otherwise insulate a defendant employer from liability for prohibited discrimination.