home
***
CD-ROM
|
disk
|
FTP
|
other
***
search
/
Shareware Overload Trio 2
/
Shareware Overload Trio Volume 2 (Chestnut CD-ROM).ISO
/
dir33
/
sc92_602.zip
/
SC92-602.LAW
Wrap
Text File
|
1993-09-10
|
47KB
|
731 lines
SUPREME COURT OF THE UNITED STATES
--------
No. 92-602
--------
ST. MARY'S HONOR CENTER, ET AL., PETITIONERS v. MELVIN HICKS
____
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
EIGHTH CIRCUIT
[June 25, 1993]
JUSTICE SOUTER, with whom JUSTICE WHITE, JUSTICE BLACKMUN, and JUSTICE STEVENS
join, dissenting.
Twenty years ago, in McDonnell Douglas Corp. v. Green, 411 U. S. 792 (1973),
this Court unanimously prescribed a "sensible, orderly way to evaluate the
evidence" in a Title VII disparate-treatment case, giving both plaintiff and
defendant fair opportunities to litigate "in light of common experience as it
bears on the critical question of discrimination." Furnco Construction Corp. v.
Waters, 438 U. S. 567, 577 (1978). We have repeatedly reaffirmed and refined
the McDonnell Douglas framework, most notably in Texas Dept. of Community
Affairs v. Burdine, 450 U. S. 248 (1981), another unanimous opinion. See also
United States Postal Service Bd. of Governors v. Aikens, 460 U. S. 711 (1983);
Furnco, supra. But today, after two decades of stable law in this Court and
only relatively recent disruption in some of the Circuits, see ante, at 9-10,
the Court abandons this practical framework together with its central purpose,
which is "to sharpen the inquiry into the elusive factual question of
intentional discrimination." Burdine, supra, at 255, n. 8. Ignoring language
to the contrary in both McDonnell Douglas and Burdine, the Court holds that,
once a Title VII plaintiff succeeds in showing at trial that the defendant has
come forward with pretextual reasons for its actions in response to a prima
92-602 - DISSENT
2 ST. MARY'S HONOR CENTER v. HICKS
facie showing of discrimination, the factfinder still may proceed to roam the
record, searching for some nondiscriminatory explanation that the defendant has
not raised and that the plaintiff has had no fair opportunity to disprove.
Because the majority departs from settled precedent in substituting a scheme of
proof for disparate-treatment actions that promises to be unfair and unworkable,
I respectfully dissent.
The McDonnell Douglas framework that the Court inexplicably casts aside today
was summarized neatly in Burdine:
"First, the plaintiff has the burden of proving by the preponderance of the
evidence a prima facie case of discrimination. Second, if the plaintiff
succeeds in proving the prima facie case, the burden shifts to the defendant
to articulate some legitimate, nondiscriminatory reason for the employee's
rejection. Third, should the defendant carry this burden, the plaintiff must
then have an opportunity to prove by a preponderance of the evidence that the
legitimate reasons offered by the defendant were not its true reasons, but
were a pretext for discrimination." 450 U. S., at 252-253 (citations and
internal quotation marks omitted).
We adopted this three-step process to implement, in an orderly fashion, "[t]he
language of Title VII," which "makes plain the purpose of Congress to assure
equality of employment opportunities and to eliminate those discriminatory
practices and devices which have fostered racially stratified job environments
to the disadvantage of minority citizens." Id., at 800. Because "Title VII
tolerates no racial discrimination, subtle or otherwise," id., at 801, we
devised a framework that would allow both plaintiffs and the courts to deal
effectively with employment discrimination revealed only through circumstantial
evidence. See Aikens, supra, at 716 ("There will seldom
92-602 - DISSENT
ST. MARY'S HONOR CENTER v. HICKS 3
be `eyewitness' testimony as to the employer's mental processes"). This
framework has gained wide acceptance, not only in cases alleging discrimination
on the basis of "race, color, religion, sex, or national origin" under Title
VII, 42 U. S. C. S2000e-2, but also in similar cases, such as those alleging
age discrimination under the Age Discrimination in Employment Act of 1967. See,
e.g., Halsell v. Kimberly-Clark Corp., 683 F. 2d 285, 289 (CA8 1982), cert.
denied, 459 U. S. 1205 (1983); see also Brief for Lawyers' Committee for Civil
Rights et al. as Amici Curiae 3-4.
At the outset, under the McDonnell Douglas framework, a plaintiff alleging
disparate treatment in the workplace in violation of Title VII must provide the
basis for an inference of discrimination. In this case, as all agree, Melvin
Hicks met this initial burden by proving by a preponderance of the evidence that
he was black and therefore a member of a protected class; he was qualified to be
a shift commander; he was demoted and then terminated; and his position remained
available and was later filled by a qualified applicant. (Ftnote. 1) See 970
(Ftnote. 1) F. 2d 487, 491, and n. 7 (CA8 1992). Hicks thus proved what we have
called a "prima facie case" of discrimination, and it is important to note that
in this context a prima facie case is indeed a proven case. Although, in other
contexts, a prima facie case only requires production of enough evidence to
raise an issue for the trier of fact, here it means that the plaintiff has
actually established the ...(sentence remainder lost...:ed)
1) The majority, following the courts below, mentions that Hicks's position
was filled by a white male. Ante, at 3 (citing the District Court's opinion);
see 970 F. 2d 487, 491, n. 7 (CA8 1992). This Court has not directly addressed
the question whether the personal characteristics of someone chosen to replace a
Title VII plaintiff are material, and that issue is not before us today. Cf.
Cumpiano v. Banco Santander Puerto Rico, 902 F. 2d 148, 154-155 (CA1 1990)
(identity of replacement is not relevant).
92-602 - DISSENT
4 ST. MARY'S HONOR CENTER v. HICKS
elements of the prima facie case to the satisfaction of the factfinder by a
preponderance of the evidence. See 450 U. S., at 253, 254, n. 7. By doing so,
Hicks "eliminat[ed] the most common nondiscriminatory reasons" for demotion and
firing: that he was unqualified for the position or that the position was no
longer available. Burdine, 450 U. S., at 254. Given our assumption that
"people do not act in a totally arbitrary manner, without any underlying
reasons, especially in a business setting," we have explained that a prima facie
case implies discrimination "because we presume [the employer's] acts, if other-
wise unexplained, are more likely than not based on the consideration of
impermissible factors." Furnco, 438 U. S., at 577; see also Burdine, 450 U. S.,
at 254.
Under McDonnell Douglas and Burdine, however, proof of a prima facie case not
only raises an inference of discrimination; in the absence of further evidence,
it also creates a mandatory presumption in favor of the plaintiff. 450 U. S.,
at 254, n. 7. Although the employer bears no trial burden at all until the
plaintiff proves his prima facie case, once the plaintiff does so the employer
must either respond or lose. As we made clear in Burdine, "[I]f the employer is
silent in the face of the presumption, the court must enter judgment for the
plaintiff." Id., at 254; see ante, at 7, n. 3 (in these circumstances, the
factfinder "must find the existence of the presumed fact of unlawful
discrimination and must, therefore, render a verdict for the plaintiff")
(emphasis in original). Thus, if the employer remains silent because it acted
for a reason it is too embarrassed to reveal, or for a reason it fails to
discover, see ante, at 10-11, the plaintiff is entitled to judgment under
Burdine.
Obviously, it would be unfair to bar an employer from coming forward at this
stage with a nondiscriminatory explanation for its actions, since the lack of an
open position and the plaintiff's lack of qualifications do not exhaust the set
of nondiscriminatory reasons that might
92-602 - DISSENT
ST. MARY'S HONOR CENTER v. HICKS 5
explain an adverse personnel decision. If the trier of fact could not consider
other explanations, employers' autonomy would be curtailed far beyond what is
needed to rectify the discrimination identified by Congress. Cf. Furnco, supra,
at 577-578 (Title VII "does not impose a duty to adopt a hiring procedure that
maximizes hiring of minority employees"). On the other hand, it would be
equally unfair and utterly impractical to saddle the victims of discrimination
with the burden of either producing direct evidence of discriminatory intent or
eliminating the entire universe of possible nondiscriminatory reasons for a
personnel decision. The Court in McDonnell Douglas reconciled these competing
interests in a very sensible way by requiring the employer to "articulate,"
through the introduction of admissible evidence, one or more "legitimate,
nondiscriminatory reason[s]" for its actions. 411 U. S., at 802; Burdine,
supra, at 254-255. Proof of a prima facie case thus serves as a catalyst
obligating the employer to step forward with an explanation for its actions.
St. Mary's, in this case, used this opportunity to provide two reasons for its
treatment of Hicks: the severity and accumulation of rule infractions he had
allegedly committed. 970 F. 2d, at 491.
The Court emphasizes that the employer's obligation at this stage is only a
burden of production, ante, at 4, 6; see 450 U. S., at 254-255, and that, if the
employer meets the burden, the presumption entitling the plaintiff to judgment
"drops from the case." Id., at 255, n. 10; see ante, at 4. This much is
certainly true, (Ftnote. 2) but the obligation also
(Ftnote. 2)
2) The majority contends that it would "fl[y] in the face of our holding in
Burdine" to "resurrect" this mandatory presumption at a later stage, in cases
where the plaintiff proves that the employer's proffered reasons are pretextual.
Ante, at 7. Hicks does not argue to the contrary. See Brief for Respondent 20,
n. 4 (citing Fed. Rule Evid. 301). The question presented in this case is not
whether the mandatory presumption is resurrected (everyone agrees that it is
not), but whether the factual enquiry is narrowed by the McDonnell Douglas
framework to the question of pretext.
92-602 - DISSENT
6 ST. MARY'S HONOR CENTER v. HICKS
serves an important function neglected by the majority, in requiring the
employer "to frame the factual issue with sufficient clarity so that the
plaintiff will have a full and fair opportunity to demonstrate pretext." 450
U. S., at 255-256. The employer, in other words, has a "burden of production"
that gives it the right to choose the scope of the factual issues to be resolved
by the factfinder. But investing the employer with this choice has no point
unless the scope it chooses binds the employer as well as the plaintiff. Nor
does it make sense to tell the employer, as this Court has done, that its
explanation of legitimate reasons "must be clear and reasonably specific," if
the factfinder can rely on a reason not clearly articulated, or on one not
articulated at all, to rule in favor of the employer. (Ftnote. 3) Id., at 258;
(Ftnote. 3) ____
see id., at 255, n. 9 ("An articulation not admitted into evidence will not
suffice").
Once the employer chooses the battleground in this manner, "the factual
inquiry proceeds to a new level of specificity." Id., at 255. During this
final, more specific enquiry, the employer has no burden to prove that its
3) The majority is simply wrong when it suggests that my reading of
McDonnell Douglas and Burdine proceeds on the assumption that the employer's
reasons must be stated "apart from the record." Ante, at 19-20 (emphasis
omitted). As I mentioned above, and I repeat here, such reasons must be set
forth "through the introduction of admissible evidence." Supra, at 5; see
Burdine, 450 U. S., at 255. Such reasons cannot simply be found "lurking in the
record," as the Court suggests, ante, at 20, for Burdine requires the employer
to articulate its reasons through testimony or other admissible evidence that is
"clear and reasonably specific," 450 U. S., at 258. Accordingly, the plaintiff
need not worry about waiting for the court to identify the employer's reasons at
the end of trial, or in this case six months after trial, because McDonnell
Douglas and Burdine require the employer to articulate its reasons clearly
during trial. No one, for example, had any trouble in this case identifying the
two reasons for Hicks's dismissal that St. Mary's articulated during trial.
92-602 - DISSENT
ST. MARY'S HONOR CENTER v. HICKS 7
proffered reasons are true; rather, the plaintiff must prove by a preponderance
of the evidence that the proffered reasons are
pretextual. (Ftnote. 4) Id., at 256. McDonnell Douglas makes it clear that if
(Ftnote. 4)
The plaintiff fails to show "pretext," the challenged employment action "must
stand." 411 U. S., at 807. If, on the other hand, the plaintiff carries his
burden of showing "pretext," the court "must order a prompt and appropriate
remedy." (Ftnote. 5) Ibid. Or, as we said in Burdine: "[The plaintiff] now
(Ftnote. 5)
must have the opportunity to demonstrate that the proffered reason was not the
true reason for the employment decision. This burden now merges with the
ultimate burden of persuading the court
4) We clarified this aspect of the McDonnell Douglas framework in Burdine,
where the question presented was "whether, after the plaintiff has proved a
prima facie case of discriminatory treatment, the burden shifts to the defendant
to persuade the court by a preponderance of the evidence that legitimate,
nondiscriminatory reasons for the challenged employment action existed." 450
U. S., at 250.
5) The Court makes a halfhearted attempt to rewrite these passages from
McDonnell Douglas, arguing that "pretext for discrimination" should appear where
"pretext" actually does. Ante, at 13, n. 6. I seriously doubt that such a
change in diction would have altered the meaning of these crucial passages in
the manner the majority suggests, see n. 7, infra, but even on the majority's
assumption that there is a crucial difference, it must believe that the
McDonnell Douglas Court was rather sloppy in summarizing its own opinion.
Earlier in the McDonnell Douglas opinion, the Court does state that an employer
may not use a plaintiff's conduct "as a pretext for . . . discrimination." 411
U. S., at 804; see ante, at 13, n. 6 (quoting this sentence to justify rewriting
the McDonnell Douglas summary). But in the next sentence, when the McDonnell
Douglas Court's focus shifts from what the employer may not do to what the
plaintiff must show, the Court states that the plaintiff must "be afforded a
fair opportunity to show that [the employer's] stated reason for [the
plaintiff's] rejection was in fact pretext," plain and simple. 411 U. S., at
804. To the extent choosing between "pretext" and "pretext for discrimination"
is important, the McDonnell Douglas Court's diction appears to be consistent,
not sloppy. Burdine, of course, nails down the point that the plaintiff
satisfies his burden simply by proving that the employer's explanation does not
deserve credence. See infra, at 8.
92-602 - DISSENT
8 ST. MARY'S HONOR CENTER v. HICKS
____
that [the plaintiff] has been the victim of intentional
discrimination." (Ftnote. 6) 450 U. S., at 256. Burdine drives home the point
(Ftnote. 6)
that the case has proceeded to "a new level of specificity" by explaining that
the plaintiff can meet his burden of persuasion in either of two ways: "either
directly by persuading the court that a discriminatory reason more likely
motivated the employer or indirectly by showing that the employer's proffered
explanation is unworthy of credence." (Ftnote. 7) Ibid.; see Aikens, 460 U. S.,
(Ftnote. 7)
at 716 (quoting this language from Burdine); id., at 717-718 (BLACKMUN, J.,
joined by Brennan, J., concurring); see also
6) The majority puts forward what it calls "a more reasonable reading" of
this passage, ante, at 14, but its chosen interpretation of the "merger" that
occurs is flatly contradicted by the very next sentence in Burdine, which
indicates, as the majority subsequently admits, ante, at 14, that the burden of
persuasion is limited to the question of pretext. It seems to me "more
reasonable" to interpret the "merger" language in harmony with, rather than in
contradiction to, its immediate context in Burdine.
7) The majority's effort to rewrite Burdine centers on repudiating this
passage, see ante, at 14-16, which has provided specific, concrete guidance to
courts and Title VII litigants for more than a decade, and on replacing
"pretext" wherever it appears with "pretext for discrimination," as defined by
the majority, see ante, at 13-14. These two efforts are intertwined, for
Burdine tells us specifically how a plaintiff can prove either "pretext" or
"pretext for discrimination": "either directly by persuading the court that a
discriminatory reason more likely motivated the employer or indirectly by
showing that the employer's proffered explanation is unworthy of credence." 450
U. S., at 256 (emphasis supplied). The majority's chosen method of proving
"pretext for discrimination" changes Burdine's "either . . . or" into a "both
. . . and": "[A] reason cannot be proved to be `a pretext for discrimination'
unless it is shown both that the reason was false, and that discrimination was
the real reason." Ante, at 13 (emphasis omitted). The majority thus takes a
shorthand phrase from Burdine ("pretext for discrimination"), discovers
requirements in the phrase that are directly at odds with the specific
requirements actually set out in Burdine, and then rewrites Burdine in light of
this "discovery." No one "[f]amiliar with our case-law," ante, at 9, will be
persuaded by this strategy.
92-602 - DISSENT
ST. MARY'S HONOR CENTER v. HICKS 9
____
92-602 - DISSENT
10 ST. MARY'S HONOR CENTER v. HICKS
____
Price Waterhouse v. Hopkins, 490 U. S. 228, 287-289 (1989) (KENNEDY, J.,
dissenting) (discussing these "two alternative methods" and relying on JUSTICE
BLACKMUN's concurrence in Aikens). That the plaintiff can succeed simply by
showing that "the employer's proffered explanation is unworthy of credence"
indicates that the case has been narrowed to the question whether the employer's
proffered reasons are pretextual. (Ftnote. 8) Thus, because Hicks carried his
(Ftnote. 8)
burden of persuasion by showing that St. Mary's proffered reasons were "unworthy
of credence," the Court of Appeals properly concluded that he was entitled to
judgment. (Ftnote. 9) 970 F. 2d, at 492.
(Ftnote. 9)
The Court today decides to abandon the settled law that sets out this
structure for trying disparate-treatment Title
8) That the sole, and therefore determinative, issue left at this stage is
pretext is further indicated by our discussion in McDonnell Douglas of the
various types of evidence "that may be relevant to any showing of pretext," 411
U. S., at 804, by our decision to reverse in Furnco because the Court of Appeals
"did not conclude that the [challenged] practices were a pretext for
discrimination," 438 U. S., at 578, and by our reminder in Burdine that even
after the employer meets the plaintiff's prima facie case, the "evidence
previously introduced by the plaintiff to establish a prima facie case" and the
"inferences properly drawn therefrom may be considered by the trier of fact on
the issue of whether the [employer's] explanation is pretextual," 450 U. S., at
255, n. 10.
9) The foregoing analysis of burdens describes who wins on various
combinations of evidence and proof. It may or may not also describe the actual
sequence of events at trial. In a bench trial, for example, the parties may be
limited in their presentation of evidence until the court has decided whether
the plaintiff has made his prima facie showing. But the court also may allow in
all the evidence at once. In such a situation, under our decision in Aikens,
the defendant will have to choose whether it wishes simply to attack the prima
facie case or whether it wants to present nondiscriminatory reasons for its
actions. If the defendant chooses the former approach, the factfinder will
decide at the end of the trial whether the plaintiff has proven his prima facie
case. If the defendant takes the latter approach, the only question for the
factfinder will be the issue of pretext. United States Postal Service Bd. of
Governors v. Aikens, 460 U. S. 711, 715 (1981); see ante, at 7, n. 3.
92-602 - DISSENT
ST. MARY'S HONOR CENTER v. HICKS 11
VII cases, only to adopt a scheme that will be unfair to plaintiffs, unworkable
in practice, and inexplicable in forgiving employers who present false evidence
in court. Under the majority's scheme, once the employer succeeds in meeting
its burden of production, "the McDonnell Douglas framework . . . is no longer
relevant." Ante, at 7. Whereas we said in Burdine that if the employer carries
its burden of production, "the factual inquiry proceeds to a new level of
specificity," 450 U. S., at 255, the Court now holds that the further enquiry is
wide open, not limited at all by the scope of the employer's proffered
explanation. (Ftnote. 10) Despite the Court's assiduous effort to reinterpret
(Ftnote. 10)
our precedents, it remains clear that today's decision stems from a flat
misreading of Burdine and ignores the central purpose of the McDonnell Douglas
framework, which is "progressively to sharpen the inquiry into the elusive
factual question of intentional discrimination." Id., at 255, n. 8. We have
repeatedly identified the compelling reason for limiting the factual issues in
the final stage of a McDonnell Douglas case as "the requirement that the
plaintiff be afforded a full and fair opportunity to demonstrate pretext." Id.,
at 258 (internal quotation marks omitted); see id., at 256 (the plaintiff "must
have the opportunity to demonstrate" pretext); Aikens, supra, at 716, n. 5;
Furnco, 438 U. S., at 578; McDonnell Douglas, 411 U. S., at 805. The majority
fails to explain how the plaintiff, under its scheme, will ever have a "full and
fair opportunity" to demonstrate that reasons not articulated by the employer,
but discerned in the record by the factfinder, are also unworthy of credence.
The Court thus transforms the employer's burden of production
10) Under the Court's unlikely interpretation of the "new level of
specificity" called for by Burdine (and repeated in Aikens, see 460 U. S., at
715), the issues facing the plaintiff and the court can be discovered anywhere
in the evidence the parties have introduced concerning discriminatory
motivation. Ante, at 13.
92-602 - DISSENT
12 ST. MARY'S HONOR CENTER v. HICKS
from a device used to provide notice and promote fairness into a misleading and
potentially useless ritual.
The majority's scheme greatly disfavors Title VII plaintiffs without the good
luck to have direct evidence of discriminatory intent. The Court repeats the
truism that the plaintiff has the "ultimate burden" of proving discrimination,
see ante, at 4, 5, 8, 15, without ever facing the practical question of how the
plaintiff without such direct evidence can meet this burden. Burdine provides
the answer, telling us that such a plaintiff may succeed in meeting his ultimate
burden of proving discrimination "indirectly by showing that the employer's
proffered explanation is unworthy of credence." 450 U. S., at 256; see Aikens,
supra, at 716; id., at 717-718 (BLACKMUN, J., joined by Brennan, J.,
concurring). The possibility of some practical procedure for addressing what
Burdine calls indirect proof is crucial to the success of most Title VII claims,
for the simple reason that employers who discriminate are not likely to announce
their discriminatory motive. And yet, under the majority's scheme, a victim of
discrimination lacking direct evidence will now be saddled with the tremendous
disadvantage of having to confront, not the defined task of proving the
employer's stated reasons to be false, but the amorphous requirement of
disproving all possible nondiscriminatory reasons that a factfinder might find
lurking in the record. In the Court's own words, the plaintiff must "disprove
all other reasons suggested, no matter how vaguely, in the record." Ante, at 20
(emphasis in original).
While the Court appears to acknowledge that a plaintiff will have the task of
disproving even vaguely suggested reasons, and while it recognizes the need for
"[c]larity regarding the requisite elements of proof," ante, at 21, it
nonetheless gives conflicting signals about the scope of its holding in this
case. In one passage, the Court states that although proof of the falsity of
the employer's proffered reasons does not "compe[l] judgment for the plain-
92-602 - DISSENT
ST. MARY'S HONOR CENTER v. HICKS 13
tiff," such evidence, without more, "will permit the trier of fact to infer the
ultimate fact of intentional discrimination." Ante, at 8 (emphasis omitted).
The same view is implicit in the Court's decision to remand this case, ante, at
21-22, keeping Hicks's chance of winning a judgment alive although he has done
no more (in addition to proving his prima facie case) than show that the reasons
proffered by St. Mary's are unworthy of credence. But other language in the
Court's opinion supports a more extreme conclusion, that proof of the falsity of
the employer's articulated reasons will not even be sufficient to sustain
judgment for the plaintiff. For example, the Court twice states that the
plaintiff must show "both that the reason was false, and that discrimination was
the real reason." Ante, at 13; see ante, at 5. In addition, in summing up its
reading of our earlier cases, the Court states that "[i]t is not enough . . . to
disbelieve the employer." Ante, at 17 (emphasis omitted). This "pretext-plus"
approach would turn Burdine on its head, see n. 7, supra, and it would result in
summary judgment for the employer in the many cases where the plaintiff has no
evidence beyond that required to prove a prima facie case and to show that the
employer's articulated reasons are unworthy of credence. Cf. Carter v. Duncan-
Huggins, Ltd., 234 U. S. App. D. C. 126, 146, 727 F. 2d 1225, 1245 (1984)
(Scalia, J., dissenting) ("[I]n order to get to the jury the plaintiff would
. . . have to introduce some evidence . . . that the basis for [the] discrimi-
natory treatment was race") (emphasis in original). See generally Lanctot, The
Defendant Lies and the Plaintiff Loses: The Fallacy of the "Pretext-Plus" Rule
in Employment Discrimination Cases, 43 Hastings L. J. 57 (1991) (criticizing the
"pretext-plus" approach).
The Court fails to explain, moreover, under either interpretation of its
holding, why proof that the employer's articulated reasons are "unpersuasive, or
even obviously contrived," ante, at 21, falls short. Under McDonnell
92-602 - DISSENT
14 ST. MARY'S HONOR CENTER v. HICKS
____
Douglas and Burdine, there would be no reason in this situation to question
discriminatory intent. The plaintiff has raised an inference of discrimination
(though no longer a presumption) through proof of his prima facie case, and as
we noted in Burdine, this circumstantial proof of discrimination can also be
used by the plaintiff to show pretext. 450 U. S., at 255, n. 10. Such proof is
merely strengthened by showing, through use of further evidence, that the
employer's articulated reasons are false, since "common experience" tells us
that it is "more likely than not" that the employer who lies is simply trying to
cover up the illegality alleged by the plaintiff. Furnco, 438 U. S., at 577.
Unless McDonnell Douglas's command to structure and limit the case as the
employer chooses is to be rendered meaningless, we should not look beyond the
employer's lie by assuming the possible existence of other reasons the employer
might have proffered without lying. By telling the factfinder to keep digging
in cases where the plaintiff's proof of pretext turns on showing the employer's
reasons to be unworthy of credence, the majority rejects the very point of the
McDonnell Douglas rule requiring the scope of the factual enquiry to be limited,
albeit in a manner chosen by the employer. What is more, the Court is throwing
out the rule for the benefit of employers who have been found to have given
false evidence in a court of law. There is simply no justification for favoring
these employers by exempting them from responsibility for
lies. (Ftnote. 11) It may indeed be true that such
(Ftnote. 11)
11) Although the majority chides me for referring to employers who offer
false evidence in court as "liars," see ante, at 17-18, it was the first to
place such employers in the company of perjurers. See ante, at 19. In any
event, it is hardly "absurd" to say that an individual is lying when the
factfinder does not believe his testimony, whether he is testifying on his own
behalf or as the agent of a corporation. Ante, at 18. Factfinders constantly
must decide whether explanations offered in court are true, and when they
conclude, by a preponderance of the evidence, that a proffered explanation is
false, it is not unfair to call that explanation a lie. To label it "perjury,"
a criminal concept, would be jumping the gun, but only the majority has employed
that term. See ante, at 17-19.
92-602 - DISSENT
ST. MARY'S HONOR CENTER v. HICKS 15
employers have nondiscriminatory reasons for their actions, but ones so shameful
that they wish to conceal them. One can understand human frailty and the
natural desire to conceal it, however, without finding in it a justification to
dispense with an orderly procedure for getting at "the elusive factual question
of intentional discrimination." Burdine, 450 U. S., at 255, n. 8.
With no justification in the employer's favor, the consequences to actual and
potential Title VII litigants stand out sharply. To the extent that workers
like Melvin Hicks decide not to sue, given the uncertainties they would face
under the majority's scheme, the legislative purpose in adopting Title VII will
be frustrated. To the extent such workers nevertheless decide to press forward,
the result will likely be wasted time, effort, and money for all concerned.
Under the scheme announced today, any conceivable explanation for the employer's
actions that might be suggested by the evidence, however unrelated to the
employer's articulated reasons, must be addressed by a plaintiff who does not
wish to risk losing. Since the Court does not say whether a trial court may
limit the introduction of evidence at trial to what is relevant to the
employer's articulated reasons, and since the employer can win on the
possibility of an unstated reason, the scope of admissible evidence at trial
presumably includes any evidence potentially relevant to "the ultimate question"
of discrimination, unlimited by the employer's stated reasons. Ante, at 8. If
so, Title VII trials promise to be tedious affairs. But even if, on the
contrary, relevant evidence is still somehow to be limited by reference to the
employer's reasons, however "vaguely" articulated, the careful plaintiff will
have to anticipate all the side issues that might arise even in a more limited
evidentiary presentation. Thus,
92-602 - DISSENT
16 ST. MARY'S HONOR CENTER v. HICKS
____
in either case, pretrial discovery will become more extensive and wide-ranging
(if the plaintiff can afford it), for a much wider set of facts could prove to
be both relevant and important at trial. The majority's scheme, therefore, will
promote longer trials and more pre-trial discovery, threatening increased
expense and delay in Title VII litigation for both plaintiffs and defendants,
and increased burdens on the judiciary.
In addition to its unfairness and impracticality, the Court's new scheme, on
its own terms, produces some remarkable results. Contrary to the assumption
underlying the McDonnell Douglas framework, that employers will have "some
reason" for their hiring and firing decisions, see Furnco, 438 U. S., at 577
(emphasis in original), the majority assumes that some employers will be unable
to discover the reasons for their own personnel actions. See ante, at 10-11.
Under the majority's scheme, however, such employers, when faced with proof of a
prima facie case of discrimination, still must carry the burden of producing
evidence that a challenged employment action was taken for a nondiscriminatory
reason. Ante, at 3-4, 6. Thus, if an employer claims it cannot produce any
evidence of a nondiscriminatory reason for a personnel
decision, (Ftnote. 12) and the trier of fact concludes that the plain-
(Ftnote. 12)
12) The Court is unrealistically concerned about the rare case in which an
employer cannot easily turn to one of its employees for an explanation of a
personnel decision. See ante, at 10-11. Most companies, of course, keep
personnel records, and such records generally are admissible under Rule 803(6)
of the Federal Rules of Evidence. See, e.g., Martin v. Funtime, Inc., 963
F. 2d 110, 115-116 (CA6 1992); EEOC v. Alton Packaging Corp., 901 F. 2d 920,
925-926 (CA11 1990). Even those employers who do not keep records of their
decisions will have other means of discovering the likely reasons for a
personnel action by, for example, interviewing co-workers, examining employment
records, and identifying standard personnel policies. The majority's scheme
rewards employers who decide, in this atypical situation, to invent rather than
to investigate.
This concern drives the majority to point to the hypothetical case, ante, at
10-11, of the employer with a disproportionately high percentage of minority
workers who would nonetheless lose a Title VII racial discrimination case by
giving an untrue reason for a challenged personnel action. What the majority
does not tell us, however, is why such an employer must rely solely on an
"antagonistic former employee," ante, at 11, rather than on its own personnel
records, among other things, to establish the credible, nondiscriminatory reason
it almost certainly must have had, given the facts assumed. The majority claims
it would be a "mockery of justice" to allow recovery against an employer who
presents "compelling evidence" of nondiscrimination simply because the jury
believes a reason given in a personnel record "is probably not the `true' one."
Ante, at 11, n. 5. But prior to drawing such a conclusion, the jury would
consider all of the "compelling evidence" as at least circumstantial evidence
for the truth of the nondiscriminatory explanation, because the employer would
be able to argue that it would not lie to avoid a discrimination charge when its
general behavior had been so demonstrably meritorious. If the jury still found
that the plaintiff had carried his burden to show untruth, the untruth must have
been a real whopper, or else the "compelling evidence" must not have been very
compelling. In either event, justice need not worry too much about mockery.
92-602 - DISSENT
ST. MARY'S HONOR CENTER v. HICKS 17
tiff has proven his prima facie case, the court must enter judgment for the
plaintiff. Ante, at 7, n. 3. The majority's scheme therefore leads to the per-
verse result that employers who fail to discover nondiscriminatory reasons for
their own decisions to hire and fire employees not only will benefit from
lying, (Ftnote. 13) but must lie, to defend successfully against a disparate-
(Ftnote. 13)
treatment action. By offering false evidence of a nondiscriminatory reason,
such
13) As the majority readily admits, its scheme places any employer who lies
in a better position than the employer who says nothing. Ante, at 18-19. Under
McDonnell Douglas and Burdine, an employer caught in a lie will lose on the
merits, subjecting himself to liability not only for damages, but also for the
prevailing plaintiff's attorney's fees, including, presumably, fees for the
extra time spent to show pretext. See 42 U. S. C. S2000e-5(k) (1988 ed., Supp.
III) (providing for an award of a "reasonable attorney's fee" to the "prevailing
party" in a Title VII action). Under the majority's scheme, the employer who is
caught in a lie, but succeeds in injecting into the trial an unarticulated
reason for its actions, will win its case and walk away rewarded for its
falsehoods.
92-602 - DISSENT
18 ST. MARY'S HONOR CENTER v. HICKS
____
an employer can rebut the presumption raised by the plaintiff's prima facie
case, and then hope that the factfinder will conclude that the employer may have
acted for a reason unknown rather than for a discriminatory reason. I know of
no other scheme for structuring a legal action that, on its own terms, requires
a party to lie in order to prevail.
Finally, the Court's opinion destroys a framework carefully crafted in
precedents as old as 20 years, which the Court attempts to deflect, but not to
confront. The majority first contends that the opinions creating and refining
the McDonnell Douglas framework consist primarily of dicta, whose bearing on the
issue we consider today presumably can be ignored. See ante, at 12. But this
readiness to disclaim the Court's considered pronouncements devalues them.
Cases, such as McDonnell Douglas, that set forth an order of proof necessarily
go beyond the minimum necessary to settle the narrow dispute presented, but
evidentiary frameworks set up in this manner are not for that reason subject to
summary dismissal in later cases as products of mere dicta. Courts and
litigants rely on this Court to structure lawsuits based on federal statutes in
an orderly and sensible manner, and we should not casually abandon the
structures adopted.
Because the Court thus naturally declines to rely entirely on dismissing our
prior directives as dicta, it turns to the task of interpreting our prior cases
in this area, in particular Burdine. While acknowledging that statements from
these earlier cases may be read, and in one instance must be read, to limit the
final enquiry in a disparate-treatment case to the question of pretext, the
Court declares my reading of those cases to be "utter[ly] implausib[le]," ante,
at 10, imputing views to earlier Courts that would be "beneath contempt," ante,
at 15, n. 7. The unlikely reading is, however, shared by the Solicitor General
and the Equal Employment Opportunity Commission, which is charged with
implementing and
92-602 - DISSENT
ST. MARY'S HONOR CENTER v. HICKS 19
____
enforcing Title VII and related statutes, see Brief for United States et al. as
Amici Curiae 1-2, not to mention the Court of Appeals in this case and, even by
the Court's count, more than half of the Courts of Appeals to have discussed the
question (some, albeit, in dicta). See ante, at 9-10. The company should not
be cause for surprise. For reasons explained above, McDonnell Douglas and
Burdine provide a clear answer to the question before us, and it would behoove
the majority to explain its decision to depart from those cases.
The Court's final attempt to neutralize the force of our precedents comes in
its claim that Aikens settled the question presented today. This attempt to
rest on Aikens runs into the immediate difficulty, however, that Aikens repeats
what we said earlier in Burdine: the plaintiff may succeed in meeting his
ultimate burden of persuasion "`either directly by persuading the court that a
discriminatory reason more likely motivated the employer or indirectly by
showing that the employer's proffered explanation is unworthy of credence.'"
Aikens, 460 U. S., at 716 (quoting Burdine, 450 U. S., at 256). Although the
Aikens Court quoted this statement approvingly, the majority here projects its
view that the latter part of the statement is "problematic," ante, at 17,
arguing that the next sentence in Aikens takes care of the "problem." The next
sentence, however, only creates more problems for the majority, as it directs
the District Court to "decide which party's explanation of the employer's
motivation it believes." 460 U. S., at 716 (emphasis supplied). By requiring
the factfinder to choose between the employer's explanation and the plaintiff's
claim of discrimination (shown either directly or indirectly), Aikens flatly
bars the Court's conclusion here that the factfinder can choose a third
explanation, never offered by the employer, in ruling against the plaintiff.
Because Aikens will not bear the reading the majority seeks to place upon it,
there is no
92-602 - DISSENT
20 ST. MARY'S HONOR CENTER v. HICKS
hope of projecting into the past the abandonment of precedent that occurs today.
I cannot join the majority in turning our back on these earlier decisions.
"Considerations of stare decisis have special force in the area of statutory
interpretation, for here, unlike in the context of constitutional
interpretation, the legislative power is implicated, and Congress remains free
to alter what we have done." Patterson v. McLean Credit Union, 491 U. S. 164,
172-173 (1989). It is not as though Congress is unaware of our decisions
concerning Title VII, and recent experience indicates that Congress is ready to
act if we adopt interpretations of this statutory scheme it finds to be
mistaken. See Civil Rights Act of 1991, 105 Stat. 1071. Congress has taken no
action to indicate that we were mistaken in McDonnell Douglas and Burdine.
* * *
The enhancement of a Title VII plaintiff's burden wrought by the Court's
opinion is exemplified in this case. Melvin Hicks was denied any opportunity,
much less a full and fair one, to demonstrate that the supposedly nondiscrimi-
natory explanation for his demotion and termination, the personal animosity of
his immediate supervisor, was unworthy of credence. In fact, the District Court
did not find that personal animosity (which it failed to recognize might be
racially motivated) was the true reason for the actions St. Mary's took; it
adduced this reason simply as a possibility in explaining that Hicks had failed
to prove "that the crusade [to terminate him] was racially rather than
personally motivated." 756 F. Supp. 1244, 1252 (ED Mo. 1991). It is hardly
surprising that Hicks failed to prove anything about this supposed personal
crusade, since St. Mary's never articulated such an explanation for Hicks's
discharge, and since the person who allegedly conducted this crusade denied at
trial any personal difficulties between himself and Hicks. App. 46. While the
majority may well be troubled about the unfair
92-602 - DISSENT
ST. MARY'S HONOR CENTER v. HICKS 21
treatment of Hicks in this instance and thus remands for review of whether the
District Court's factual conclusions were clearly erroneous, see ante, at 21-22,
the majority provides Hicks with no opportunity to produce evidence showing that
the District Court's hypothesized explanation, first articulated six months
after trial, is unworthy of credence. Whether Melvin Hicks wins or loses on
remand, many plaintiffs in a like position will surely lose under the scheme
adopted by the Court today, unless they possess both prescience and resources
beyond what this Court has previously required Title VII litigants to employ.
Because I see no reason why Title VII interpretation should be driven by
concern for employers who are too ashamed to be honest in court, at the expense
of victims of discrimination who do not happen to have direct evidence of
discriminatory intent, I respectfully dissent.