Where the Court of Appeals in respondent's employment
discrimination action against petitioners (employer) appears to
have imposed a heavier burden on the employer than
Furnco
Construction Co. v. Waters, 438 U. S. 567,
requires with respect to meeting the employee's
prima
facie case of discrimination, its judgment is vacated, and the
case is remanded for reconsideration in light of
Furnco.
Certiorari granted; 569 F.2d 169, vacated and remanded.
PER CURIAM.
The petition for a writ of certiorari is granted. In
Furnco
Construction Co. v. Waters, 438 U. S. 567
(1978), we stated that,
"[t]o dispel the adverse inference from a
prima facie
showing under
McDonnell Douglas, the employer need only
'articulate some legitimate, nondiscriminatory reason for the
employee's rejection.'"
Id. at
438 U. S. 578,
quoting
McDonnell Douglas Corp. v. Green, 411 U.
S. 792,
411 U. S. 802
(1973). We stated in
McDonnell Douglas 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."
Id. at
411 U. S. 804.
The Court of Appeals in the present case, however, referring to
McDonnell Douglas, stated that,
"in requiring the defendant to
prove absence of
discriminatory motive, the Supreme Court placed the burden
squarely on the party with the greater access to such
evidence."
569 F.2d 169, 177 (CA1 1978) (emphasis added). [
Footnote 1]
Page 439 U. S. 25
While words such as "articulate," "show," and "prove," may have
more or less similar meanings depending upon the context in which
they are used, we think that there is a significant distinction
between merely "articulat[ing] some legitimate, nondiscriminatory
reason" and "prov[ing] absence of discriminatory motive." By
reaffirming and emphasizing the
McDonnell Douglas analysis
in
Furnco Construction Co. v. Waters, supra, we made it
clear that the former will suffice to meet the employee's
prima
facie case of discrimination. Because the Court of Appeals
appears to have imposed a heavier burden on the employer than
Furnco warrants, its judgment is vacated and the case is
remanded for reconsideration in the light of
Furnco, supra
at
438 U. S. 578.
[
Footnote 2]
It is so ordered.
[
Footnote 1]
While the Court of Appeals did make the statement that the
dissent quotes,
post at
439 U. S. 27, it
also made the statement quoted in the text above. These statements
simply contradict one another. The statement quoted in the text
above would make entirely superfluous the third step in the
Furnco-McDonnell Douglas analysis, since it would place on
the employer at the second stage the burden of showing that the
reason for rejection was not a pretext, rather than requiring
contrary proof from the employee as a part of the third step. We
think our remand is warranted both because we are unable to
determine which of the two conflicting standards the Court of
Appeals applied in reviewing the decision of the District Court in
this case and because of the implication in its opinion that there
is no difference between the two standards. We, of course, intimate
no view as to the correct result if the proper test is applied in
this case.
[
Footnote 2]
We quite agree with the dissent that, under
Furnco and
McDonnell Douglas, the employer's burden is satisfied if
he simply "explains what he has done" or "produc[es] evidence of
legitimate nondiscriminatory reasons."
Post at
439 U. S. 28,
439 U. S. 29.
But petitioners clearly did produce evidence to support their
legitimate nondiscriminatory explanation for refusing to promote
respondent during the years in question.
See 569 F.2d at
172-173, 178; App. to Pet. for Cert. B-2 to B-24. Nonetheless, the
Court of Appeals held that petitioners had not met their burden
because the proffered legitimate explanation did not "rebut" or
"disprove" respondent's
prima facie case or "prove absence
of nondiscriminatory motive." 569 F.2d at 177-179;
see
App. to Pet. for Cert. 25. This holding by the Court of Appeals is
further support for our belief that the court appears to have
imposed a heavier burden on the employer than
Furnco, and
the dissent here, require.
MR. JUSTICE STEVENS, with whom MR. JUSTICE BRENNAN, MR. JUSTICE
STEWART, and MR. JUSTICE MARSHALL join, dissenting.
Whenever this Court grants certiorari and vacates a court of
appeals judgment in order to allow that court to reconsider
Page 439 U. S. 26
its decision in the light of an intervening decision of this
Court, the Court is acting on the merits. Such action always
imposes an additional burden on circuit judges who -- more than any
other segment of the federal judiciary -- are struggling
desperately to keep afloat in the flood of federal litigation. For
that reason, such action should not be taken unless the intervening
decision has shed new light on the law which, if it had been
available at the time of the court. of appeals' decision, might
have led to a different result.
In this case, the Court's action implies that the recent opinion
in
Furnco Construction Corp. v. Waters, 438 U.
S. 567, made some change in the law as explained in
McDonnell Douglas Corp. v. Green, 411 U.
S. 792. When I joined the
Furnco opinion, I
detected no such change, and I am still unable to discern one. In
both cases, the Court clearly stated that, when the complainant in
a Title VII trial establishes a
prima facie case of
discrimination,
"the burden which shifts to the employer is merely that of
proving that he based his employment decision on a legitimate
consideration, and not an illegitimate one such as race. [
Footnote 2/1] "
Page 439 U. S. 27
The Court of Appeals' statement of the parties' respective
burdens in this case is wholly faithful to this Court's teachings
in
McDonnell Douglas. The Court of Appeals here
stated:
"As we understand those cases [
McDonnell Douglas and
Teamsters v. United States,
431 U. S.
324], a plaintiff bears the initial burden of presenting
evidence sufficient to establish a
prima facie case of
discrimination.
The burden then shifts to the defendant to
rebut the prima facie
case by showing that a legitimate,
nondiscriminatory reason accounted for its actions. If the
rebuttal is successful, the plaintiff must show that the stated
reason was a mere pretext for discrimination.
The ultimate
burden of persuasion on the issue of discrimination remains with
the plaintiff, who must convince the court by a preponderance of
the evidence that he or she has been the victim of
discrimination."
569 F.2d 169, 177 (CA1 1978) (emphasis added).
This statement by the Court of Appeals virtually parrots this
Court's statements in
McDonnell Douglas and
Furnco. Nonetheless, this Court vacates the judgment on
the ground that "the Court of Appeals appears to have imposed a
heavier burden on the employer than
Furnco warrants."
Ante at
439 U. S. 25. As
its sole basis for this conclusion, this Court relies on a
distinction drawn for the first time in this case
"between merely 'articulat[ing] some legitimate,
nondiscriminatory
Page 439 U. S. 28
reason' and 'prov[ing] absence of discriminatory motive.'"
Ante at
439 U. S. 25.
[
Footnote 2/2] This novel
distinction has two parts, both of which are illusory and were
unequivocally rejected in
Furnco itself.
First is a purported difference between "articulating" and
"proving" a legitimate motivation. Second is the difference between
affirming a nondiscriminatory motive and negating a discriminatory
motive.
With respect to the first point, it must be noted that it was
this Court in
Furnco, not the Court of Appeals in this
case, that stated that the employer's burden was to
"
prov[e] that he based his employment decision on a
legitimate consideration." [
Footnote
2/3] Indeed, in the paragraph of this Court's opinion in
Furnco cited earlier, the words "prove" and "articulate"
were used interchangeably, [
Footnote
2/4] and properly so. For they were descriptive of the
defendant's burden in a trial context. In litigation, the only way
a defendant can "articulate" the reason for his action is by
adducing evidence that explains what he has done; when an executive
takes the witness stand to "articulate" his reason, the litigant
for whom he speaks is
Page 439 U. S. 29
thereby proving those reasons. If the Court intends to authorize
a method of articulating a factual defense without proof, surely
the Court should explain what it is.
The second part of the Court's imaginative distinction is also
rejected by
Furnco. When an employer shows that a
legitimate nondiscriminatory reason accounts for his action, he is
simultaneously demonstrating that the action was not motivated by
an illegitimate factor such as race.
Furnco explicitly
recognized this equivalence when it defined the burden on the
employer as "that of proving that he based his employment decision
on a legitimate consideration, and not an illegitimate one such as
race." [
Footnote 2/5] Whether the
issue is phrased in the affirmative or in the negative, the
ultimate question involves an identification of the real reason for
the employment decision. On that question -- as all of these cases
make perfectly clear -- it is only the burden of producing evidence
of legitimate nondiscriminatory reasons which shifts to the
employer; the burden of persuasion, as the Court of Appeals
properly recognized, remains with the plaintiff.
In short, there is no legitimate basis for concluding that the
Court of Appeals erred in this case -- either with or without the
benefit of
Furnco. The Court's action today therefore
needlessly imposes additional work on circuit judges who have
already considered and correctly applied the rule the Court directs
them to reconsider and reapply.
[
Footnote 2/1]
This language is quoted from the following paragraph in
Furnco:
"When the
prima facie case is understood in the light
of the opinion in
McDonnell Douglas, it is apparent that
the burden which shifts to the employer is merely that of proving
that he based his employment decision on a legitimate
consideration, and not an illegitimate one such as race. To prove
that, he need not prove that he pursued the course which would both
enable him to achieve his own business goal
and allow him
to consider the
most employment applications. Title VII
prohibits him from having as a goal a workforce selected by any
proscribed discriminatory practice, but it does not impose a duty
to adopt a hiring procedure that maximizes hiring of minority
employees. To dispel the adverse inference from a
prima
facie showing under
McDonnell Douglas, the employer
need only 'articulate some legitimate, nondiscriminatory reason for
the employee's rejection.'"
438 U.S. at
438 U. S.
577-578 (emphasis in original).
The comparable passage in
McDonnell Douglas reads as
follows:
"The burden then must shift to the employer to articulate some
legitimate, nondiscriminatory reason for the employee's rejection.
We need not attempt in the instant case to detail every matter
which fairly could be recognized as a reasonable basis for a
refusal to hire. Here, petitioner has assigned respondent's
participation in unlawful conduct against it as the cause for his
rejection. We think that this suffices to discharge petitioner's
burden of proof at this stage, and to meet respondent's
prima
facie case of discrimination."
411 U.S. at
411 U. S.
802-803.
[
Footnote 2/2]
The Court also suggests that "further support" for its decision
is derived from the Court of Appeals' "holding" that
"petitioners had not met their burden because the proffered
legitimate explanation did not 'rebut' or 'disprove' respondent's
prima facie case . . . 569 F.2d at 177-179."
Ante at
439 U. S. 25-26,
n. 2. The actual "holding" of the Court of Appeals was that "the
trial court's finding that sex discrimination impeded the
plaintiff's second promotion was not clearly erroneous." 569 F.2d
169, 179 (CA1 1978). The Court of Appeals reached this conclusion
by considering all of the evidence presented by both parties to
determine whether the evidence of discrimination offered by the
plaintiff was "sufficient . . . to sustain the district court's
findings" in light of the counter evidence offered by the employer.
Ibid. Such factual determinations by two federal courts
are entitled to a strong presumption of validity.
[
Footnote 2/3]
438 U.S. at
438 U. S. 577
(quoted in
439 U.S.
24fn2/1|>n. 1,
supra; emphasis added). It should
also be noted that the Court of Appeals did not state that the
petitioners' burden here was to "prove" anything; rather, the
burden which shifted to them as defendants was to "show" a
legitimate reason for their action.
[
Footnote 2/4]
See 439 U.S.
24fn2/1|>n. 1,
supra.
[
Footnote 2/5]
438 U.S. at
438 U. S.
577.
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