Before I got sidetracked by David Letterman and other
current affairs, I was blogging about the application of the Teamsters
burden-shifting framework in pattern or practice disparate treatment cases. Today, I want to revisit the question I
posed in my first blog post: Under
what circumstances, and under which antidiscrimination statutes, can the Teamsters
method of proof be used by plaintiffs?
As Mike Zimmer noted in a comment to that post, perhaps nomenclature
should not be important in determining whether the Teamsters method of proof
can be employed in any particular type of case. Maybe the Teamsters method of proof should just be one of
several alternative ways for any plaintiff to establish an inference of
disparate treatment discrimination, regardless of the statute or the type of
discriminatory conduct at issue.
Perhaps it should not be dispositive that the ADEA does not contain the
words “pattern or practice.” I
would tend to agree. At least, it
seems to me, we should undertake a critical examination of the underlying
purposes and justifications for the Teamsters burden-shifting proof structure
when determining whether or not it should be available to plaintiffs in a
particular type of disparate treatment discrimination case.
When we conduct this sort of critical examination, we can begin
to see why systemic harassment claims differ from other types of
systemic disparate treatment claims, and why the Teamsters-style “pattern or
practice” burden-shifting advocated by the EEOC is inappropriate in systemic harassment cases. To demonstrate this point, I return to
the Court’s reasoning in the Teamsters opinion. The Teamsters Court held that the McDonnell-Douglas formula
was not the only way for a plaintiff to establish a prima facie case of
disparate treatment discrimination, and therefore not the only way to create an
inference (or a rebuttable presumption) of intentional discrimination. Int’l B’hood of
Teamsters v. U.S., 431 U.S. 324, 358-59 (1977). (Continued after the jump).
An alternative way to create an inference of discrimination,
the Teamsters Court reasoned, was exemplified by the Court’s earlier holding in
Franks v. Bowman Transportation Co., 424 U.S. 747 (1976). In Franks, the plaintiffs alleged “a broad-based policy of employment discrimination.” If plaintiffs could carry the burden of
proving that allegation, then “there were reasonable grounds to infer that
individual hiring decisions were made in pursuit of the discriminatory policy
and to require the employer to come forth with evidence dispelling that
inference.” Int’l B’hood of
Teamsters v. U.S., 431 U.S. 324, 359 (1977). The Teamsters Court went one step further, and held that
statistical evidence could be used to establish a prima facie case and justify an inference of discrimination as to
individual claimants.
Importantly, the Teamsters Court explained the
underlying justification for this “pattern or practice” type of burden-shift as
follows:
The holding in Franks
that proof of a discriminatory pattern and practice creates a rebuttable
presumption in favor of individual relief is consistent with the manner in
which presumptions are created generally. Presumptions shifting the burden of proof are often
created to reflect judicial evaluations of probabilities and to conform with a
party’s superior access to the proof. See C. McCormick, Law of Evidence ss 337, 343 (2d ed. 1972);
James, Burdens of Proof, 47 Va. L. Rev. 51, 61 (1961). See also Keyes v. School Dist. No. 1, 413
U.S. 189, 208-209, 93 S.Ct. 2686, 2697, 37 L.Ed.2d 548. These factors were present in
Franks. Although the prima facie case did not conclusively demonstrate that all
of the employer’s decisions were part of the proved discriminatory pattern and
practice, it did create a greater likelihood that any single decision was a
component of the overall pattern. Moreover,
the finding of a pattern or practice changed the position of the employer to
that of a proved wrongdoer. Finally, the employer was in the best position to show why
any individual employee was denied an employment opportunity. Insofar as the reasons related to available
vacancies or the employer’s evaluation of the applicant’s qualifications, the
company’s records were the most relevant items of proof. If the refusal to hire was based on
other factors, the employer and its agents knew best what those factors were
and the extent to which they influenced the decision-making process.
Teamsters, 431 U.S. at
359, n.45.
The Court thus recognized two important factors justifying a
burden-shift: (1) judicial
evaluations of probabilities, and (2) the parties’ relative access to the
proof.
The first factor – evaluations of probabilities – is a
function of the evidence offered at Phase I of a pattern or practice case. In the typical systemic discrimination
case involving hiring, firing, or promotions, statistical evidence of a
disparity offered in Phase I can be a good indicator of a relatively high
probability that the adverse employment action suffered by any particular
individual claimant was the product of discrimination. Likewise, where an express policy is
shown to be facially discriminatory (like the airline's discriminatory “bumping” policy at issue in Trans World
Airlines v. Thurston, 469 U.S. 111 (1985)), the probability that the adverse employment action suffered by any particular claimant affected by the policy was the product of unlawful discrimination can be presumed to be high.
Systemic harassment cases are different. In a prior post, I discussed the
typical lack of meaningful statistical evidence in systemic harassment
cases. If only anecdotal evidence
is offered by the EEOC in Phase I of a systemic harassment case, then the EEOC
has not shown the same indicator of a high probability of actionable harassment
as to the individual claimants that did not testify in Phase I. In the comments to that post, Jerry
Carbo suggested that perhaps the EEOC is offering qualitative research evidence
in Phase I of these cases, and not just “anecdotal evidence.” In my estimation, “qualitative
research” is an overly generous characterization of the evidence that the EEOC typically
offers in Phase I of a systemic harassment case like Corrections Corp. Based on my research of systemic
harassment cases and my own experience in practice, the EEOC is really just
offering the anecdotal evidence of the most sympathetic claimants, without
offering a representative sampling of all the results gathered by the
EEOC’s investigation, without any expert scientific interpretation of the
witnesses’ accounts as qualitative research results, and without employing any
recognized validation methods for qualitative research. In other words, the EEOC is acting
purely as an advocate in deciding which witnesses to put on the stand in Phase
I, and is not offering scientifically validated qualitative research. In any event, in the Corrections Corp.
case the EEOC itself referred to the evidence it intended to offer in Phase I
as “anecdotal.” It never suggested
that it was offering evidence of scientific qualitative research results in
order to justify a burden-shift.
Thus, unlike a case involving an expressly discriminatory policy or statistical evidence
of racial disparity in hiring, firing, or promotions, the probability factor
may not be present (or at least not as strong) in systemic harassment
cases.
As to the second factor – the parties’ relative access to
the proof – there is also a difference between ordinary systemic discrimination
cases and systemic harassment cases.
In the ordinary disparate treatment discrimination case, the ultimate
issue is the employer’s intent in deciding to fire, or to not hire, or to not
promote the individual claimant.
Direct evidence of an employer’s actual motive – i.e., what the
decision-maker was actually thinking – in making such an adverse employment
decision is almost always impossible for a plaintiff to obtain. As the Teamsters court noted in the
passage quoted above, if the reasons for the adverse action were legitimate and
non-discriminatory, then the employer and its agents would be in the best
position to know those reasons and the extent to which they affected the
decision.
But again, harassment is different. Evidence of the key issues in harassment cases is generally just as available to
individual plaintiffs as it is to employers. In fact, one element of an individual claim for harassment
is a showing that the plaintiff subjectively perceived his or her work
environment to be hostile. The
individual plaintiff must have been exposed to the actions, words, or
conditions that constitute the hostile work environment in order for them to
form the basis for the harassment claim.
The plaintiff knows what he or she was subjected to, and can testify to
it. Further, the plaintiff
generally knows who witnessed the incidents – or is at least as likely to know
the identities of the witnesses as is the employer. In short, harassment is necessarily a “public” event. It happens in the presence of the
plaintiff, and not in secret in the supervisor’s office or inside the
decision-maker’s mind. The
plaintiff is just as likely (if not more likely) to have access to evidence of
the alleged harassment as the employer and its agents. Harassment cases often boil down to
credibility determinations, but that alone does not justify the imposition of a
rebuttable presumption that a violation occurred.
This fundamental difference is reflected in the way that
individual harassment claims are resolved, as compared to other types of
individual disparate treatment claims.
The McDonnnell-Douglas burden-shifting formula generally will not apply in
individual harassment claims - except perhaps in those cases where there is a question about whether plaintiff was harassed because of his or her sex (or race, etc.), and not because of some other reason, like having a generally difficult supervisor that harasses and bullies everyone. In the ordinary individual harassment case, there is no creation of an inference or a rebuttable presumption that the plaintiff was subjected to a work environment that was so hostile as to constitute a Title VII violation. Rather, the
plaintiff has the burden of establishing that his or her work environment was
both objectively and subjectively hostile. So why should the individual claimants in systemic
harassment claims be given the benefit of a rebuttable presumption or an
inference that they were the victims of a work environment that was both objectively and subjectively hostile, based on only selective anecdotal evidence that other claimants experienced a hostile work
environment? Perhaps a sufficient level of anecdotal proof in Phase I might be able justify a presumption that any harassment suffered by the other individual claimants was because of sex or race, and not because of some other reason (after all, evidence of this motive question might be only in the harasser's mind), but that is not the inference that the EEOC is advocating. In systemic harassment cases like Corrections Corp., the EEOC is asking for a presumption, based on the anecdotal evidence offered in Phase I, that all of the individual claimants were subjected to an actionable hostile work environment in violation of Title VII. As I discussed in my prior post, the district courts remain divided on whether drawing that type of inference is appropriate.
Putting the “pattern or practice” nomenclature aside, we can
and should critically examine the underlying purposes and justifications for
burden-shifting to determine when the Teamsters method of proof should be
available to plaintiffs in cases alleging systemic discrimination. By examining (1) the relative
probability of a violation as to any individual claimant (in light of
statistical, anecdotal, or other evidence offered at Phase I), and (2) the
parties’ relative access to evidence, we can see that systemic harassment
claims are different from other types of systemic disparate treatment
claims. Unlike Teamsters, the factors justifying a burden-shift are absent, or at least less
compelling, in systemic harassment cases.
-Jason Bent
https://lawprofessors.typepad.com/laborprof_blog/2009/11/probabilities-and-symmetrical-access-to-information-in-harassment-cases.html