OCTOBER TERM, 1992
Syllabus
ST. MARY'S HONOR CENTER ET AL.
v. HICKS
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH
CIRCUIT
No. 92-602. Argued April 20, 1993-Decided June 25,1993
Petitioner halfway house employed respondent Hicks as a
correctional officer and later a shift commander. After being
demoted and ultimately discharged, Hicks filed suit, alleging that
these actions had been taken because of his race in violation of,
inter alia, § 703(a)(1) of Title VII of the Civil Rights Act
of 1964. Adhering to the allocation of the burden of production and
the order for the presentation of proof in Title VII
discriminatory-treatment cases that was established in
McDonnell
Douglas Corp. v.
Green, 411 U. S. 792, the
District Court found that Hicks had established, by a preponderance
of the evidence, a prima facie case of racial discrimination; that
petitioners had rebutted that presumption by introducing evidence
of two legitimate, nondiscriminatory reasons for their actions; and
that petitioners' reasons were pretextual. It nonetheless held that
Hicks had failed to carry his ultimate burden of proving that the
adverse actions were racially motivated. In setting aside this
determination, the Court of Appeals held that Hicks was entitled to
judgment as a matter of law once he proved that all of petitioners'
proffered reasons were pretextual.
Held: The trier of fact's rejection of an employer's
asserted reasons for its actions does not entitle a plaintiff to
judgment as a matter of law. Pp. 505-525.
(a) Under
McDonnell Douglas, once Hicks established, by a
preponderance of the evidence, a prima facie case of
discrimination,
Texas Dept. of Community Affairs v.
Burdine, 450
U. S. 248, 252-253, a presumption arose that petitioners
unlawfully discriminated against him,
id., at 254, requiring
judgment in his favor unless petitioners came forward with an
explanation. This presumption placed upon petitioners the burden of
producing evidence that the adverse actions were taken for
legitimate, nondiscriminatory reasons, which,
if believed by the
trier of fact, would support a finding that unlawful
discrimination did not cause their actions.
Id., at 254-255,
and n. 8. However, as in the case of all presumptions, see Fed.
Rule Evid. 301, the ultimate burden of persuasion remained at all
times with Hicks, 450 U. S., at 253. The Court of Appeals erred
when it concluded that the trier of fact's disbelief of
petitioners' proffered reasons placed petitioners in the same
position as if they had remained silent in the face of Hicks' prima
facie case of
503
racial discrimination. Petitioners' production of evidence of
nondiscriminatory reasons, whether ultimately persuasive or not,
satisfied their burden of production and rebutted the presumption
of intentional discrimination. The
McDonnell Douglas
framework then became irrelevant, and the trier of fact was
required to decide the ultimate question of fact: whether Hicks had
proved that petitioners intentionally discriminated against him
because of his race. Compelling judgment for Hicks would disregard
the fundamental principle of Rule 301 that a presumption does not
shift the burden of proof, and would ignore the admonition that the
Title VII plaintiff at all times bears the ultimate burden of
persuasion. Pp. 505-512.
(b) This Court has no authority to impose liability upon an
employer for alleged discriminatory employment practices unless the
factfinder determines that the employer has unlawfully
discriminated. Nor may the Court substitute for that required
finding the much different and much lesser finding that the
employer's explanation of its action was not believable. Any doubt
created by a dictum in
Burdine that falsity of the
employer's explanation is alone enough to sustain a plaintiff's
case was eliminated by
Postal Service Bd. of Governors v.
Aikens, 460 U.
S. 711, 714. Pp. 512-520.
(c) The concerns of the dissent and respondent that this
decision will produce dire practical consequences are unfounded.
Pp. 520-525.
970 F.2d
487, reversed and remanded.
SCALIA, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and O'CONNOR, KENNEDY, and THOMAS, JJ., joined.
SOUTER, J., filed a dissenting opinion, in which WHITE, BLACKMUN,
and STEVENS, JJ., joined,
post, p. 525.
Gary L. Gardner, Assistant Attorney General of Missouri,
argued the cause for petitioners. With him on the brief were
Jeremiah W Nixon, Attorney General, and
Don M.
Downing, Deputy Attorney General.
Charles R. Oldham argued the cause for respondent.
With him on the brief were Elaine R. Jones, Charles Stephen
Ralston, Eric Schnapper, and Louis Gilden.
Edward C. DuMont argued the cause for the United States et al.
as amici curiae urging affirmance. With him on the brief were
Acting Solicitor General Bryson, Acting Assistant Attorney General
Turner, Edwin S. Kneedler,
504
David K. Flynn, Rebecca K. Troth, Donald R. Livingston, and
Gwendolyn Young Reams.*
JUSTICE SCALIA delivered the opinion of the Court.
We granted certiorari to determine whether, in a suit against an
employer alleging intentional racial discrimination in violation of
§ 703(a)(1) of Title VII of the Civil Rights Act of 1964, 78 Stat.
255, 42 U. S. C. § 2000e-2(a)(1), the trier of fact's rejection of
the employer's asserted reasons for its actions mandates a finding
for the plaintiff.
I
Petitioner St. Mary's Honor Center (St. Mary's) is a halfway
house operated by the Missouri Department of Corrections and Human
Resources (MDCHR). Respondent Melvin Hicks, a black man, was hired
as a correctional officer at St. Mary's in August 1978 and was
promoted to shift commander, one of six supervisory positions, in
February 1980.
In 1983 MDCHR conducted an investigation of the administration
of St. Mary's, which resulted in extensive supervisory changes in
January 1984. Respondent retained his position, but John Powell
became the new chief of custody (respondent's immediate supervisor)
and petitioner Steve
*Briefs of
amici curiae urging reversal were filed for
the Chamber of Commerce of the United States by
Stephen A.
Bokat, Robin S.
Conrad, and
Mona C.
Zeiberg; for the Equal Employment Advisory Council by
Robert E. Williams and
Douglas S.
McDowell;
for the National Association of Manufacturers by
Glen D.
Nager and
Jan S.
Amundson; and for the Washington
Legal Foundation et al. by
Daniel J. Popeo,
Richard A. Samp, and
Hugh Joseph Beard, Jr.
Briefs of amici curiae urging affirmance were filed for the
Lawyer's Committee for Civil Rights under Law et al. by Herbert M.
Wachtell, William H. Brown III, Norman Redlich, Thomas
J.
Henderson, Richard T. Seymour, Colleen McMahon, Melissa T. Rosse,
Isabelle Katz Pinzler, Steven R. Shapiro, Donna R. Lenhoff, Cathy
Ventrell-Monsees, Antonia Hernandez, and E. Richard Larson; and for
the National Employment Lawyers Association by Janette Johnson.
505
Long the new superintendent. Prior to these personnel changes
respondent had enjoyed a satisfactory employment record, but soon
thereafter became the subject of repeated, and increasingly severe,
disciplinary actions. He was suspended for five days for violations
of institutional rules by his subordinates on March 3, 1984. He
received a letter of reprimand for alleged failure to conduct an
adequate investigation of a brawl between inmates that occurred
during his shift on March 21. He was later demoted from shift
commander to correctional officer for his failure to ensure that
his subordinates entered their use of a St. Mary's vehicle into the
official logbook on March 19, 1984. Finally, on June 7, 1984, he
was discharged for threatening Powell during an exchange of heated
words on April 19.
Respondent brought this suit in the United States District Court
for the Eastern District of Missouri, alleging that petitioner St.
Mary's violated § 703(a)(1) of Title VII of the Civil Rights Act of
1964, 42 U. S. C. § 2000e-2(a)(1), and that petitioner Long
violated Rev. Stat. § 1979, 42 U. S. C. § 1983, by demoting and
then discharging him because of his race. After a full bench trial,
the District Court found for petitioners. 756 F. Supp. 1244 (ED Mo.
1991). The United States Court of Appeals for the Eighth Circuit
reversed and remanded,
970 F.2d
487 (1992), and we granted certiorari, 506 U. S. 1042
(1993).
II
Section 703(a)(1) of Title VII of the Civil Rights Act of 1964
provides in relevant part:
"It shall be an unlawful employment practice for an
employer-
"(1) ... to discharge any individual, or otherwise to
discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment,
because of such individual's race .... " 42 U. S. C. §
2000e-2(a).
506
With the goal of "progressively ... sharpen[ing] the inquiry
into the elusive factual question of intentional discrimination,"
Texas Dept. of Community Affairs v.
Burdine, 450 U.
S. 248, 255, n. 8 (1981), our opinion in
McDonnell Douglas
Corp. v.
Green, 411 U. S. 792 (1973),
established an allocation of the burden of production and an order
for the presentation of proof in Title VII discriminatory-treatment
cases.1 The plaintiff in such a case, we said, must first
establish, by a preponderance of the evidence, a "prima facie" case
of racial discrimination.
Burdine, supra, at 252-253.
Petitioners do not challenge the District Court's finding that
respondent satisfied the minimal requirements of such a prima facie
case (set out in
McDonnell Douglas, supra, at 802) by
proving (1) that he is black, (2) that he was qualified for the
position of shift commander, (3) that he was demoted from that
position and ultimately discharged, and (4) that the position
remained open and was ultimately filled by a white man. 756 F.
Supp., at 1249-1250.
Under the
McDonnell Douglas scheme, "[e]stablishment of
the prima facie case in effect creates a presumption that the
employer unlawfully discriminated against the employee."
Burdine, supra, at 254. To establish a "presumption" is to
say that a finding of the predicate fact (here, the prima facie
case) produces "a required conclusion in the absence of
explanation" (here, the finding of unlawful discrimination). 1 D.
Louisell & C. Mueller, Federal Evidence § 67, p. 536 (1977).
Thus, the
McDonnell Douglas presumption places upon the
defendant the burden of producing an expla-
1 The Court of Appeals held that the purposeful-discrimination
element of respondent's § 1983 claim against petitioner Long is the
same as the purposeful-discrimination element of his Title VII
claim against petitioner St. Mary's.
970 F.2d
487, 490-491
(CA8 1992). Neither side challenges that
proposition, and we shall assume that the
McDonnell Douglas
framework is fully applicable to
racial-discrimination-in-employment claims under 42 U. S. C. §
1983. Cf.
Patterson v.
McLean Credit Union, 491 U. S. 164, 186 (1989)
(applying framework to claims under 42 U. S. C. § 1981).
507
nation to rebut the prima facie case-i.
e., the burden of
"producing evidence" that the adverse employment actions were taken
"for a legitimate, nondiscriminatory reason."
Burdine, 450
U. S., at 254. "[T]he defendant must clearly set forth, through the
introduction of admissible evidence," reasons for its actions
which,
if believed by the trier of fact, would support a
finding that unlawful discrimination was not the cause of the
employment action.
Id., at 254-255, and n. 8. It is
important to note, however, that although the
McDonnell
Douglas presumption shifts the burden of
production to
the defendant, "[t]he ultimate burden of persuading the trier of
fact that the defendant intentionally discriminated against the
plaintiff remains at all times with the plaintiff." 450 U. S., at
253. In this regard it operates like all presumptions, as described
in Federal Rule of Evidence 301:
"In all civil actions and proceedings not otherwise provided for
by Act of Congress or by these rules, a presumption imposes on the
party against whom it is directed the burden of going forward with
evidence to rebut or meet the presumption, but does not shift to
such party the burden of proof in the sense of the risk of
nonpersuasion, which remains throughout the trial upon the party on
whom it was originally cast."
Respondent does not challenge the District Court's finding that
petitioners sustained their burden of production by introducing
evidence of two legitimate, nondiscriminatory reasons for their
actions: the severity and the accumulation of rules violations
committed by respondent. 756 F. Supp., at 1250. Our cases make
clear that at that point the shifted burden of production became
irrelevant: "If the defendant carries this burden of production,
the presumption raised by the prima facie case is rebutted,"
Burdine, 450 U. S., at 255, and "drops from the case,"
id., at 255, n. 10. The plaintiff then has "the full and
fair opportunity to demonstrate,"
508
through presentation of his own case and through
crossexamination of the defendant's witnesses, "that the proffered
reason was not the true reason for the employment decision,"
id., at 256, and that race was. He retains that "ultimate
burden of persuading the [trier of fact] that [he] has been the
victim of intentional discrimination."
Ibid.
The District Court, acting as trier of fact in this bench trial,
found that the reasons petitioners gave were not the real reasons
for respondent's demotion and discharge. It found that respondent
was the only supervisor disciplined for violations committed by his
subordinates; that similar and even more serious violations
committed by respondent's co-workers were either disregarded or
treated more leniently; and that Powell manufactured the final
verbal confrontation in order to provoke respondent into
threatening him. 756 F. Supp., at 1250-1251. It nonetheless held
that respondent had failed to carry his ultimate burden of proving
that
his race was the determining factor in petitioners'
decision first to demote and then to dismiss him.2 In short, the
District Court concluded that "although [respondent] has proven the
existence of a crusade to terminate him, he has not proven that the
crusade was racially rather than personally motivated."
Id.,
at 1252.
The Court of Appeals set this determination aside on the ground
that "[o]nce [respondent] proved all of [petitioners'] proffered
reasons for the adverse employment actions to be pretextual,
[respondent] was entitled to judgment as a matter of law." 970 F.
2d, at 492. The Court of Appeals reasoned:
2 Various considerations led it to this conclusion, including
the fact that two blacks sat on the disciplinary review board that
recommended disciplining respondent, that respondent's black
subordinates who actually committed the violations were not
disciplined, and that "the number of black employees at St. Mary's
remained constant." 756 F. Supp., at 1252.
509
"Because all of defendants' proffered reasons were discredited,
defendants were in a position of having offered no legitimate
reason for their actions. In other words, defendants were in no
better position than if they had remained silent, offering no
rebuttal to an established inference that they had unlawfully
discriminated against plaintiff on the basis of his race."
Ibid.
That is not so. By producing
evidence (whether ultimately
persuasive or not) of nondiscriminatory reasons, petitioners
sustained their burden of production, and thus placed themselves in
a "better position than if they had remained silent."
In the nature of things, the determination that a defendant has
met its burden of production (and has thus rebutted any legal
presumption of intentional discrimination) can involve no
credibility assessment. For the burden-of-production determination
necessarily
precedes the credibility-assessment stage. At
the close of the defendant's case, the court is asked to decide
whether an issue of fact remains for the trier of fact to
determine. None does if, on the evidence presented, (1) any
rational person would have to find the existence of facts
constituting a prima facie case, and (2) the defendant has failed
to meet its burden of production-i.
e., has failed to
introduce evidence which,
taken as true, would
permit
the conclusion that there was a nondiscriminatory reason for the
adverse action. In that event, the court must award judgment to the
plaintiff as a matter of law under Federal Rule of Civil Procedure
50(a)(1) (in the case of jury trials) or Federal Rule of Civil
Procedure 52 (c) (in the case of bench trials). See F. James &
G. Hazard, Civil Procedure § 7.9, p. 327 (3d ed. 1985); 1 Louisell
& Mueller, Federal Evidence § 70, at 568. If the defendant has
failed to sustain its burden but reasonable minds could
differ as to whether a preponderance of the evidence
establishes the facts of a prima facie
510
case, then a question of fact
does remain, which the
trier of fact will be called upon to answer.3
If, on the other hand, the defendant has succeeded in carrying
its burden of production, the
McDonnell Douglas
framework-with its presumptions and burdens-is no longer relevant.
To resurrect it later, after the trier of fact has determined that
what was "produced" to meet the burden of production is not
credible, flies in the face of our holding in
Burdine that
to rebut the presumption "[t]he defendant need not persuade the
court that it was actually motivated by the proffered reasons." 450
U. S., at 254. The presumption, having fulfilled its role of
forcing the de-
3 If the finder of fact answers affirmatively-if it finds that
the prima facie case
is supported by a preponderance of the
evidence-it
must find the existence of the presumed fact of
unlawful discrimination and
must, therefore, render a
verdict for the plaintiff. See
Texas Dept. of Community
Affairs v.
Burdine, 450 U. S. 248, 254, and
n. 7 (1981); F. James & G. Hazard, Civil Procedure § 7.9, p.
327 (3d ed. 1985); 1 D. Louisell & C. Mueller, Federal Evidence
§ 70, pp. 568-569 (1977). Thus, the
effect of failing to
produce evidence to rebut the
McDonnell Douglas Corp. v.
Green, 411 U. S. 792 (1973), presumption is not felt until
the prima facie case has been
established, either as a
matter of law (because the plaintiff's facts are uncontested) or by
the factfinder's determination that the plaintiff's facts are
supported by a preponderance of the evidence. It is thus
technically accurate to describe the sequence as we did 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." 450 U. S., at 252-253 (internal quotation marks
omitted). As a practical matter, however, and in the real-life
sequence of a trial, the defendant
feels the "burden" not
when the plaintiff's prima facie case is
proved, but as soon
as evidence of it is
introduced. The defendant then knows
that its failure to introduce evidence of a nondiscriminatory
reason will cause judgment to go against it
unless the
plaintiff's prima facie case is held to be inadequate in law or
fails to convince the factfinder. It is this practical coercion
which causes the
McDonnell Douglas presumption to function
as a means of "arranging the presentation of evidence,"
Watson v.
Fort Worth Bank &
Trust,
487 U. S. 977,
986 (1988).
511
fendant to come forward with some response, simply drops out of
the picture.
Id., at 255. The defendant's "production"
(whatever its persuasive effect) having been made, the trier of
fact proceeds to decide the ultimate question: whether plaintiff
has proved "that the defendant intentionally discriminated against
[him]" because of his race,
id., at 253. The factfinder's
disbelief of the reasons put forward by the defendant (particularly
if disbelief is accompanied by a suspicion of mendacity) may,
together with the elements of the prima facie case, suffice to show
intentional discrimination. Thus, rejection of the defendant's
proffered reasons will
permit the trier of fact to infer the
ultimate fact of intentional discrimination,4 and the Court of
Appeals was correct when it noted that, upon such rejection, "[n]o
additional proof of discrimination is
required," 970 F. 2d,
at 493 (emphasis added). But the Court of Appeals' holding that
rejection of the defendant's proffered reasons
compels
judgment for the plaintiff disregards the fundamental principle of
Rule 301 that a presumption does not shift the burden of proof, and
ignores our repeated admonition that the Title VII plaintiff at all
times bears the "ultimate burden of persuasion." See,
e. g.,
Postal Service Bd. of Governors v.
Aikens, 460 U. S. 711, 716 (1983)
(citing
Burdine, supra, at 256);
Patterson v.
McLean Credit Union, 491 U. S. 164, 187
(1989);
Price Waterhouse v.
Hopkins, 490 U. S. 228, 245-246
(1989) (plurality opinion of Brennan, J., joined by Marshall,
BLACKMUN, and STEVENS, JJ.);
id., at 260 (WHITE, J.,
concurring in judgment);
id., at 270 (O'CONNOR, J.,
concurring in judgment);
4 Contrary to the dissent's confusion-producing analysis,
post, at 535536, there is nothing whatever inconsistent
between this statement and our later statements that (1) the
plaintiff must show"
both that the reason was false,
and that discrimination was the real reason,"
infra,
at 515, and (2) "it is not enough ... to disbelieve the employer,"
infra, at 519. Even though (as we say here) rejection of the
defendant's proffered reasons is enough at law to
sustain a
finding of discrimination,
there must be a finding of
discrimination.
512
id., at 286-288 (KENNEDY, J., joined by THE CHIEF JUSTICE
and SCALIA, J., dissenting);
Cooper v.
Federal Reserve
Bank of Richmond, 467 U. S. 867, 875
(1984); cf.
Wards Cove Packing Co. v.
Atonio,
490 U. S. 642,
659-660 (1989);
id., at 668 (STEVENS, J., dissenting);
Watson v.
Fort Worth Bank & Trust,
487 U. S. 977,
986 (1988).
III
Only one unfamiliar with our case law will be upset by the
dissent's alarum that we are today setting aside "settled
precedent,"
post, at 525, "two decades of stable law in this
Court,"
ibid., "a framework carefully crafted in precedents
as old as 20 years,"
post, at 540, which "Congress is
[aware]" of and has implicitly approved,
post, at 542. Panic
will certainly not break out among the courts of appeals, whose
divergent views concerning the nature of the supposedly "stable law
in this Court" are precisely what prompted us to take this case-a
divergence in which the dissent's version of "settled precedent"
cannot remotely be considered the "prevailing view." Compare,
e.
g., EEOC v.
Flasher Co., 986 F. 2d 1312, 1321 (CAlO
1992) (finding of pretext does not mandate finding of illegal
discrimination);
Galbraith v.
Northern Telecom, Inc.,
944 F.2d
275, 282-283 (CA6 1991) (same) (opinion of Boggs, J.), cert.
denied, 503 U. S. 945 (1992); 944 F. 2d, at 283 (same) (opinion of
Guy, J., concurring in result);
Samuels v.
Raytheon
Corp., 934 F.2d
388, 392 (CA1 1991) (same);
Holder v.
City of
Raleigh, 867 F.2d
823, 827-828 (CA4 1989) (same);
Benzies v.
Illinois
Dept. of Mental Health and Developmental Disabilities,
810 F.2d
146, 148 (CA7) (same) (dictum), cert. denied, 483 U. S. 1006
(1987);
Clark v.
Huntsville City Bd. of Ed.,
717 F.2d
525, 529 (CAll 1983) (same) (dictum), with
Hicks v.
St. Mary's Honor Center, 970 F. 2d, at 492-493 (case below)
(finding of pretext mandates finding of illegal discrimination),
cert. granted, 506 U. S. 1042 (1993);
Tye v.
Board of Ed.
of Polaris Joint Vocational School Dist., 811
F.2d 315, 320 (CA6) (same), cert.
513
denied, 484 U. S. 924 (1987);
King v.
Palmer, 250
U. S. App. D. C. 257, 260,
778 F.2d
878, 881 (1985) (same);
Duffy v.
Wheeling Pittsburgh
Steel Corp., 738 F.2d
1393, 1395-1396 (CA3) (same), cert. denied, 469 U. S. 1087
(1984);
Lopez v.
Metropolitan Life Ins. Co.,
930 F.2d
157, 161 (CA2) (same) (dictum), cert. denied, 502 U. S. 880
(1991);
Caban-Wheeler v.
Elsea, 904
F.2d 1549, 1554 (CAll 1990) (same) (dictum);
Thornbrough
v.
Columbus &
Greenville R. Co., 760 F.2d
633, 639-640, 646-647 (CA5 1985) (same) (dictum). We mean to
answer the dissent's accusations in detail, by examining our cases,
but at the outset it is worth noting the utter implausibility that
we would ever have held what the dissent says we held.
As we have described, Title VII renders it unlawful "for an
employer ... to fail or refuse to hire or to discharge any
individual, or otherwise to discriminate against any individual
with respect to his compensation, terms, conditions, or privileges
of employment, because of such individual's race, color, religion,
sex, or national origin." 42 U. S. C. § 2000e2(a)(1). Here (in the
context of the now-permissible jury trials for Title VII causes of
action) is what the dissent asserts we have held to be a proper
assessment of liability for violation of this law: Assume that 40%
of a business' work force are members of a particular minority
group, a group which comprises only 10% of the relevant labor
market. An applicant, who is a member of that group, applies for an
opening for which he is minimally qualified, but is rejected by a
hiring officer of that
same minority group, and the search
to fill the opening continues. The rejected applicant files suit
for racial discrimination under Title VII, and before the suit
comes to trial, the supervisor who conducted the company's hiring
is fired. Under
McDonnell Douglas, the plaintiff has a prima
facie case, see 411 U. S., at 802, and under the dissent's
interpretation of our law not only must the company come forward
with some explanation for the refusal to hire (which it will have
to try to confirm out of the
514
mouth of its now antagonistic former employee), but the jury
must be instructed that, if they find that explanation to be
incorrect, they must assess damages against the company,
whether or not they believe the company was guilty of racial
discrimination. The disproportionate minority makeup of the
company's work force and the fact that its hiring officer was of
the same minority group as the plaintiff will be irrelevant,
because the plaintiff's case can be proved "indirectly by showing
that the employer's proffered explanation is unworthy of
credence."5 450 U. S., at 256. Surely nothing short of inescapable
prior
holdings (the dissent does not pretend there are any)
should make one assume that this is the law we have created.
We have no authority to impose liability upon an employer for
alleged discriminatory employment practices unless an appropriate
factfinder determines, according to proper procedures,
that the
employer has unlawfully discriminated. We may, according to
traditional practice, establish certain modes and orders of proof,
including an initial rebuttable presumption of the sort we
described earlier in this opinion, which we believe
McDonnell
Douglas represents. But nothing in law would permit us to
substitute for the required finding that the employer's action was
the product of unlawful discrimination, the much different (and
much lesser) find-
5 The dissent has no response to this (not at all unrealistic)
hypothetical, except to assert that
surely the employer must
have "personnel records" to which it can resort to demonstrate the
reason for the failure to hire. The notion that every reasonable
employer keeps "personnel records" on people who never became
personnel, showing
why they did not become personnel (i.
e., in what respects all other people who were hired were
better) seems to us highly fanciful-or for the sake of American
business we hope it is. But more fundamentally, the dissent's
response misses the point. Even if such "personnel records"
do exist, it is a mockery of justice to say that if the jury
believes the reason they set forth is probably not the "true" one,
all the other utterly compelling evidence that discrimination was
not the reason will then be excluded from the jury's
consideration.
515
ing that the employer's explanation of its action was not
believable. The dissent's position amounts to precisely this,
unless what is required to establish the
McDonnell
Douglas prima facie case is a degree of proof so high that it
would, in absence of rebuttal, require a directed verdict for the
plaintiff (for in that case proving the employer's rebuttal
noncredible would leave the plaintiff's directed-verdict case in
place, and compel a judgment in his favor). Quite obviously,
however, what is required to establish the
McDonnell Douglas
prima facie case is infinitely less than what a directed verdict
demands. The dissent is thus left with a position that has no
support in the statute, no support in the reason of the matter, no
support in any holding of this Court (that is not even contended),
and support, if at all, only in the dicta of this Court's opinions.
It is to those that we now turn-begrudgingly, since we think it
generally undesirable, where holdings of the Court are not at
issue, to dissect the sentences of the United States Reports as
though they were the United States Code.
The principal case on which the dissent relies is
Burdine.
While there are some statements in that opinion that could be
read to support the dissent's position, all but one of them bear a
meaning consistent with our interpretation, and the one exception
is simply incompatible with other language in the case.
Burdine describes the situation that obtains after the
employer has met its burden of adducing a nondiscriminatory reason
as follows: "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 253. The dissent takes this to mean
that if the plaintiff proves the asserted reason to be
false, the plaintiff wins. But 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.
Burdine's later
allusions to
516
proving or demonstrating simply "pretext,"
e. g.,
id., at 258, are reasonably understood to refer to the previously
described pretext, i.
e., "pretext for discrimination."
6
Burdine also says that when the employer has met its
burden of production "the factual inquiry proceeds to a new level
of specificity."
Id., at 255. The dissent takes this to mean
that the factual inquiry reduces to whether the employer's asserted
reason is true or false-if false, the defendant loses. But the "new
level of specificity" may also (as we believe) refer to the fact
that the inquiry now turns from the few generalized factors that
establish a prima facie case to the specific proofs and rebuttals
of discriminatory motivation the parties have introduced.
In the next sentence,
Burdine says that "[p]lacing this
burden of production on the defendant thus serves ... to frame the
factual issue with sufficient clarity so that the plaintiff will
have a full and fair opportunity to demonstrate pretext."
Id., at 255-256. The dissent thinks this means that the only
factual issue remaining in the case is whether the employer's
reason is false. But since in our view "pretext" means "pretext for
discrimination," we think the sentence must be understood as
addressing the form rather than the substance of the defendant's
production burden: The requirement that the employer "clearly set
forth" its reasons,
id., at 255, gives the plaintiff a "full
and fair" rebuttal opportunity.
A few sentences later,
Burdine says: "[The plaintiff] now
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 that
she has been the victim of inten-
6 The same is true of
McDonnell Douglas's concluding
summary of the framework it created (relied upon by the dissent,
post, at 530) to the effect that if the plaintiff fails to
show "pretext," the challenged employment action "must stand." 411
U. S., at 807. There, as in
Burdine, "pretext" means the
pretext required earlier in the opinion, viz., "pretext for the
sort of discrimination prohibited by [Title VII]," 411 U. S., at
804.
517
tional discrimination."
Id., at 256. The dissent takes
this "merger" to mean that "the ultimate burden of persuading the
court that she has been the victim of intentional discrimination"
is
replaced by the mere burden of "demonstrat[ing] that the
proffered reason was not the true reason for the employment
decision." But that would be a merger in which the little fish
swallows the big one. Surely a more reasonable reading is that
proving the employer's reason false becomes part of (and often
considerably assists) the greater enterprise of proving that the
real reason was intentional discrimination.
Finally, in the next sentence
Burdine says: "[The
plaintiff] may succeed in this [i.
e., in persuading the
court that she has been the victim of intentional 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.
See
McDonnell Douglas, 411 U. S., at 804-805."
Ibid.
We must agree with the dissent on this one: The words bear no other
meaning but that the falsity of the employer's explanation is
alone enough to compel judgment for the plaintiff. The
problem is that that dictum contradicts or renders inexplicable
numerous other statements, both in
Burdine itself and in our
later case law-commencing with the very citation of authority
Burdine uses to support the proposition.
McDonnell
Douglas does
not say, at the cited pages or elsewhere,
that all the plaintiff need do is disprove the employer's asserted
reason. In fact, it says just the opposite: "[O]n the retrial
respondent must be given a full and fair opportunity to demonstrate
by competent evidence that the presumptively valid reasons for his
rejection
were in fact a coverup for a racially discriminatory
decision." 411 U. S., at 805 (emphasis added). "We ... insist
that respondent under § 703(a)(1) must be given a full and fair
opportunity to demonstrate by competent evidence
that whatever
the stated reasons for his rejection, the decision was in
reality
518
racially premised." Id., at 805, n. 18 (emphasis added).
The statement in question also contradicts
Burdine's
repeated assurance (indeed, its holding) regarding the burden of
persuasion: "The ultimate burden of persuading the trier of fact
that the defendant intentionally discriminated against the
plaintiff remains at all times with the plaintiff." 450 U. S., at
253. "The plaintiff retains the burden of persuasion."
Id.,
at 256.7 And lastly, the statement renders inexplicable
Burdine's explicit reliance, in describing the shifting
burdens of
McDonnell Douglas, upon authorities setting forth
the classic law of presumptions we have described earlier,
including Wigmore's Evidence, 450 U. S., at 253, 254, n. 7, 255, n.
8, James' and Hazard's Civil Procedure,
id., at 255, n. 8,
Federal Rule of Evidence 301,
ibid., Maguire's Evidence,
Common Sense and Common Law,
ibid., and Thayer's Preliminary
Treatise on Evidence,
id., at 255, n. 10. In light of these
inconsistencies, we think that the dictum at issue here must be
regarded as an inadvertence, to the extent that it describes
disproof of the defendant's reason as a totally independent, rather
than an auxiliary, means of proving unlawful intent.
In sum, our interpretation of
Burdine creates difficulty
with one sentence; the dissent's interpretation causes many
portions of the opinion to be incomprehensible or deceptive. But
whatever doubt
Burdine might have created was eliminated by
Aikens. There we said, in language that cannot reasonably be
mistaken, that "the ultimate question [is] discrimination
vel
non." 460 U. S., at 714. Once the defend-
7 The dissent's reading leaves
some burden of persuasion
on the plaintiff, to be sure: the burden of persuading the
factfinder that the employer's explanation is not true. But it
would be beneath contempt for this Court, in a unanimous opinion no
less, to play such word games with the concept of "leaving the
burden of persuasion upon the plaintiff." By parity of analysis, it
could be said that holding a criminal defendant guilty unless he
comes forward with a credible alibi does not shift the ultimate
burden of persuasion, so long as the Government has the burden of
persuading the factfinder that the alibi is
not
credible.
519
ant "responds to the plaintiff's proof by offering evidence of
the reason for the plaintiff's rejection, the factfinder must then
decide"
not (as the dissent would have it) whether that
evidence is credible, but "whether the rejection was discriminatory
within the meaning of Title VII."
Id., at 714-715. At that
stage, we said, "[t]he District Court was ... in a position to
decide the ultimate factual issue in the case," which is "whether
the defendant intentionally discriminated against the plaintiff."
Id., at 715 (brackets and internal quotation marks omitted).
The
McDonnell Douglas methodology was" 'never intended to be
rigid, mechanized, or ritualistic.'" 460 U. S., at 715 (quoting
Furnco, 438 U. S., at 577). Rather, once the defendant has
responded to the plaintiff's prima facie case, "[t]he district
court has before it all the evidence it needs to decide"
not
(as the dissent would have it) whether defendant's response is
credible, but "whether the defendant intentionally discriminated
against the plaintiff." 460 U. S., at 715 (internal quotation marks
omitted). "On the state of the record at the close of the evidence,
the District Court in this case should have proceeded to this
specific question directly, just as district courts decide disputed
questions of fact in other civil litigation."
Id., at
715-716.
In confirmation of this (rather than in
contradiction of it), the Court then quotes the problematic passage
from
Burdine, which says that the plaintiff may carry
her burden either directly" 'or indirectly by showing that the
employer's proffered explanation is unworthy of credence.'" 460 U.
S., at 716. It then characterizes that passage as follows: "In
short, the district court must decide which party's explanation of
the employer's motivation it believes."
Ibid. It is not
enough, in other words, to
disbelieve the employer; the
factfinder must
believe the plaintiff's explanation of
intentional discrimination. It is noteworthy that JUSTICE BLACKMUN,
although joining the Court's opinion in
Aikens, wrote a
separate concurrence for the sole purpose of saying that he
understood the Court's opinion to be saying what the
520
dissent today asserts. That concurrence was joined only by
Justice Brennan. Justice Marshall would have none of that, but
simply refused to join the Court's opinion, concurring without
opinion in the judgment. We think there is little doubt what
Aikens meant.
IV
We turn, finally, to the dire practical consequences that the
respondents and the dissent claim our decision today will produce.
What appears to trouble the dissent more than anything is that, in
its view, our rule is adopted "for the benefit of employers who
have been found to have given false evidence in a court of law,"
whom we "favo[r]" by "exempting them from responsibility for lies."
Post, at 537. As we shall explain, our rule in no way gives
special favor to those employers whose evidence is disbelieved. But
initially we must point out that there is no justification for
assuming (as the dissent repeatedly does) that those employers
whose evidence is disbelieved are perjurers and liars. See
ante, at 536-537 ("the employer who lies"; "the employer's
lie"; "found to have given false evidence"; "lies");
post,
at 540 ("benefit from lying"; "must lie"; "offering false
evidence"), 540, n. 13 ("employer who lies"; "employer caught in a
lie"; "rewarded for its falsehoods"), 540 ("requires a party to
lie"). Even if these were typically cases in which an individual
defendant's sworn assertion regarding a physical occurrence was
pitted against an individual plaintiff's sworn assertion regarding
the same physical occurrence, surely it would be imprudent to call
the party whose assertion is (by a mere preponderance of the
evidence) disbelieved, a perjurer and a liar. And in these Title
VII cases, the defendant is ordinarily
not an individual but
a company, which must rely upon the statement of an employee-often
a relatively low-level employee-as to the central fact; and that
central fact is
not a physical occurrence, but rather that
employee's state of mind. To say that the company which in good
faith
521
introduces such testimony, or even the testifying employee
himself, becomes a liar and a perjurer when the testimony is not
believed, is nothing short of absurd.
Undoubtedly some employers (or at least their employees) will be
lying. But even if we could readily identify these perjurers, what
an extraordinary notion, that we "exempt them from responsibility
for their lies" unless we enter Title VII judgments for the
plaintiffs! Title VII is not a cause of action for perjury; we have
other civil and criminal remedies for that. The dissent's notion of
judgment-for-Iying is seen to be not even a fair and evenhanded
punishment for vice, when one realizes how strangely selective it
is: The employer is free to lie to its heart's content about
whether the plaintiff ever applied for a job, about how long he
worked, how much he made-indeed, about anything and everything
except the reason for the adverse employment action. And the
plaintiff is permitted to lie about absolutely
everything
without losing a verdict he otherwise deserves. This is not a
major, or even a sensible, blow against fibbery.
The respondent's argument based upon the employer's supposed
lying is a more modest one: "A defendant which unsuccessfully
offers a 'phony reason' logically cannot be in a better legal
position [i.
e., the position of having overcome the
presumption from the plaintiff's prima facie case] than a defendant
who remains silent, and offers no reasons at all for its conduct."
Brief for Respondent 21; see also Brief for United States as
Amicus Curiae 11, 17-18. But there is no anomaly in that,
once one recognizes that the
McDonnell Douglas presumption
is a
procedural device, designed only to establish an order
of proof and production. The books are full of procedural rules
that place the perjurer (initially, at least) in a better position
than the truthful litigant who makes no response at all. A
defendant who fails to answer a complaint will, on motion, suffer a
default judgment that a deceitful response could have avoided. Fed.
Rule Civ. Proc. 55(a). A defendant whose answer fails to contest
critical
522
averments in the complaint will, on motion, suffer a judgment on
the pleadings that untruthful denials could have avoided. Rule
12(c). And a defendant who fails to submit affidavits creating a
genuine issue of fact in response to a motion for summary judgment
will suffer a dismissal that false affidavits could have avoided.
Rule 56(e). In all of those cases, as under the
McDonnell
Douglas framework, perjury may purchase the defendant a chance
at the factfinder-though there, as here, it also carries
substantial risks, see Rules 11 and 56(g); 18 u. s. C. § 1621.
The dissent repeatedly raises a procedural objection that is
impressive only to one who mistakes the basic nature of the
McDonnell Douglas procedure. It asserts that "the Court now
holds that the further enquiry [i.
e., the inquiry that
follows the employer's response to the prima facie case] is wide
open, not limited at all by the scope of the employer's proffered
explanation."
Post, at 533. The plaintiff cannot be expected
to refute "reasons not articulated by the employer, but discerned
in the record by the factfinder."
Ante, at 534. He should
not "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."
Post, at 534-535. "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 [the]
plaintiff."
Post, at 537. These statements imply that the
employer's "proffered explanation," his "stated reasons," his
"articulated reasons," somehow exist
apart from the
record-in some pleading, or perhaps in some formal,
nontestimonial statement made on behalf of the defendant to the
factfinder. ("Your honor, pursuant to
McDonnell Douglas the
defendant hereby formally asserts,
523
as
its reason for the dismissal at issue here,
incompetence of the employee.") Of course it does not work like
that. The reasons the defendant sets forth are set forth "through
the introduction of admissible evidence."
Burdine, 450 U.
S., at 255. In other words, the defendant's "articulated reasons"
themselves are to be found "lurking in the record." It thus
makes no sense to contemplate "the employer who is caught in a lie,
but succeeds in
injecting into the trial an
unarticulated reason for its actions."
Post, at 540,
n. 13 (emphasis added). There is a "lurking-in-the-record" problem,
but it exists not for us but for the dissent.
If, after the
employer has met its preliminary burden, the plaintiff need not
prove discrimination (and therefore need not disprove
all
other reasons suggested, no matter how vaguely, in the record)
there must be some device for determining which particular portions
of the record represent "articulated reasons" set forth with
sufficient clarity to satisfy
McDonnell Douglassince it is
only
that evidence which the plaintiff must refute. But of
course our
McDonnell Douglas framework makes no provision
for such a determination, which would have to be made not at the
close of the trial but
in medias res, since otherwise the
plaintiff would not know what evidence to offer. It makes no
sense.
Respondent contends that "[t]he litigation decision of the
employer to place in controversy only ... particular explanations
eliminates from further consideration the alternative explanations
that the employer chose not to advance." Brief for Respondent 15.
The employer should bear, he contends, "the responsibility for its
choices and the risk that plaintiff will disprove any pretextual
reasons
and therefore prevail." Id., at 30 (emphasis added).
It is the "therefore" that is problematic. Title VII does not award
damages against employers who cannot prove a nondiscriminatory
reason for adverse employment action, but only against employers
who are proven to have taken adverse employment
524
action by reason of (in the context of the present case) race.
That the employer's proffered reason is unpersuasive, or even
obviously contrived, does not necessarily establish that the
plaintiff's proffered reason of race is correct. That remains a
question for the factfinder to answer, subject, of course, to
appellate review-which should be conducted on remand in this case
under the "clearly erroneous" standard of Federal Rule of Civil
Procedure 52(a), see,
e. g., Anderson
Finally, respondent argues that it "would be particularly
ill-advised" for us to come forth with the holding we pronounce
today "just as Congress has provided a right to jury trials in
Title VII" cases. Brief for Respondent 31. See § 102 of the Civil
Rights Act of 1991, 105 Stat. 1073, 42 U. S. C. § 1981a(c) (1988
ed., Supp. III) (providing jury trial right in certain Title VII
suits). We think quite the opposite is true. Clarity regarding the
requisite elements of proof becomes all the more important when a
jury must be instructed concerning them, and when detailed factual
findings by the trial court will not be available upon review.
***
We reaffirm today what we said in
Aikens:
"[T]he question facing triers of fact in discrimination cases is
both sensitive and difficult. The prohibitions against
discrimination contained in the Civil Rights Act of 1964 reflect an
important national policy. There will seldom be 'eyewitness'
testimony as to the employer's mental processes. But none of this
means that trial courts or reviewing courts should treat
discrimination differently from other ultimate questions of fact.
Nor should they make their inquiry even more difficult by applying
legal rules which were devised to govern 'the basic allocation of
burdens and order of presentation of proof,' Burdine, 450 U.
S., at 252, in deciding this ultimate question." 460 U. S., at
716.
525
The judgment of the Court of Appeals is reversed, and the case
is remanded for further proceedings consistent with this
opinion.
It is so ordered.
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
Constr. 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
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 512-513, 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 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.
526
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." 411 U. S., 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 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. § 2000e-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
527
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.1 See
970 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
elements of the prima facie case to the satisfaction of the
factfinder by a preponderance of the evidence. See
Burdine,
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.
Id., 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 otherwise unexplained, are
more likely than not based on the consider-
1 The majority, following the courts below, mentions that
Hicks's position was filled by a white male.
Ante, at 506
(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).
528
ation of impermissible factors."
Furnco, 438 U. S., at
577; see also
Burdine, supra, 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 510, 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 513, 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 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 sen-
529
sible way by requiring the employer to "articulate," through the
introduction of admissible evidence, one or more "legitimate,
nondiscriminatory reason[sJ" 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 506-507, 509;
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 507.
This much is certainly true,2 but the obligation also 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
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 510. 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.
530
all, to rule in favor of the employer.3
Id., at 258; 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 proffered reasons are
true; rather, the plaintiff must prove by a preponderance of the
evidence that the proffered reasons are pretextua1.4
Id., at
256.
McDonnell Douglas makes it clear that if 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." 5
Ibid. Or, as we said in
Burdine: "[The plaintiff]
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 522 (emphasis omitted). As I mentioned
above, and I repeat here, such reasons must be set forth "through
the introduction of admissible evidence."
Supra, at 529; see
Texas Dept. of Community Affairs v.
Burdine, 450 U.
S. 248, 255 (1981). Such reasons cannot simply be found "lurking in
the record," as the Court suggests,
ante, at 523, 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.
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 516, and n. 6. I seriously
531
now 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
that [the plaintiff] has been the victim of intentional
discrimination."6 450 U. S., at 256.
Burdine drives home the
point 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." 7
Ibid.; see
Aikens, 460 U.
S., at 716
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 516, 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 this
page.
6 The majority puts forward what it calls "a more reasonable
reading" of this passage,
ante, at 517, 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 517, 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.
7The majority's effort to rewrite
Burdine centers on
repudiating this passage, see
ante, at 517-520, 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,"
532
(quoting this language from
Burdine); 460 U. S., at
717-718 (BLACKMUN, J., joined by Brennan, J., concurring); see also
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 pretextua1.8 Thus, because
Hicks carried his burden of persuasion by showing that St. Mary's
proffered reasons were
as defined by the majority, see
ante, at 515-516. 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 added). 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 515
(emphasis deleted). 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 512, will be
persuaded by this strategy.
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 Constr. Corp. v.
Waters, 438 U.
S. 567 (1978), because the Court of Appeals "did not conclude
that the [challenged] practices were a pretext for discrimination,"
id., 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.
533
"unworthy of credence," the Court of Appeals properly concluded
that he was entitled to judgment.9 970 F. 2d, at 492.
The Court today decides to abandon the settled law that sets out
this structure for trying disparate-treatment Title 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
510. 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.10 Despite the Court's
assiduous effort to reinterpret our precedents, it remains clear
that today's decision stems from a fiat misreading of
Burdine and ignores the central purpose of the
McDonnell
Douglas framework, which is "progressively to sharpen the
inquiry
9 The foregoing analysis of burdens describes who wins on
various combinations of evidence and proof. It mayor 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.
Postal Service Bd.
of Governors v.
Aikens, 460 U. S. 711, 715
(1983); see
ante, at 510, n. 3.
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 516.
534
into the elusive factual question of intentional
discrimination." 450 U. S., 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." 450 U. S., 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 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
507, 508, 511, 518, 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, 460 U. S., 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
535
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 523 (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 524, 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 plaintiff," such evidence, without more, "will permit the trier
of fact to infer the ultimate fact of intentional discrimination."
Ante, at 511 (emphasis deleted). The same view is implicit
in the Court's decision to remand this case,
ante, at
524-525, 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 515; see
ante, at 507-508. 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 519 (emphasis deleted). 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
536
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] discriminatory 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 "pretextplus" 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 524, falls short. Under
McDonnell
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 lim-
537
ited, 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.u It may indeed be true
that such 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
11 Although the majority chides me for referring to employers
who offer false evidence in court as "liars," see
ante, at
520, it was the first to place such employers in the company of
perjurers, see
ante, at 522. 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 520-521.
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 520-522.
538
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 511. 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, 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 pretrial 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, supra, 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 513. 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 506-507, 509. Thus, if an
employer claims it cannot produce any evidence of a
nondiscriminatory reason
539
for a personnel decision,12 and the trier of fact concludes that
the plaintiff has proven his prima facie case, the court must enter
judgment for the plaintiff.
Ante, at 510, n. 3. The
majority's scheme therefore leads to the perverse result that
employers who fail to discover nondiscriminatory reasons for their
own decisions to hire and fire employees not only will
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 513. 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
(CAll 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 coworkers, 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 513-514, 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
514, 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 514, 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.
540
benefit from lying,13 but must lie, to defend successfully
against a disparate-treatment action. By offering false evidence of
a nondiscriminatory reason, such 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 515.
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.
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 521-522. 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. § 2000e-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.
541
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 513, imputing
views to earlier Courts that would be "beneath contempt,"
ante, at 518, n. 7. The unlikely reading is, however, shared
by the Solicitor General and the Equal Employment Opportunity
Commission, which is charged with implementing and 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 512-513. 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 519,
arguing that the next sentence in
Aikens takes care of
542
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 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 nondiscriminatory 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 moti-
543
vated) 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 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 524-525, 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.
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