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Whose Burden Is It, Anyway? The 11th Circuit’s Evolving Standard for Burden-Shifting in Employment

Labor and Employment Law

In 1964, Congress enacted Title VII, making it illegal for employers to discriminate against individuals on the basis of race, color, religion, sex, or national origin.1 In doing so, Congress sought to eradicate the remaining vestiges of discrimination by requiring employers to remove “artificial, arbitrary, [and] unnecessary barriers to employment”2 that operate to exclude and depress workers on the basis of immutable characteristics such as race, sex, national origin, and the like. Congress has since expanded its prohibition against discrimination by adopting laws aimed at remedying discrimination against other groups, such as pregnant women,3 persons over 40,4 and disabled persons.5 Since the adoption of these statutes, courts have struggled to balance Congress’ articulated goals of ensuring discrimination-free workplaces against the legitimate business needs of employers.6

Recognizing that discriminatory animus is an elusive factual question made more difficult by the increasing sophistication of persons harboring such an animus,7 and “seeking to ease the evidentiary burdens on employment discrimination plaintiffs, who are rarely fortunate enough to have access to direct evidence[,]”8 the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. at 802, adopted a burden-shifting mechanism under which a discrimination plaintiff can raise an inference of discrimination, despite the unavailability of direct evidence, by establishing some permutation of the following:

1) Plaintiff is a member of a protected group;

2) Plaintiff was qualified and applied for an available position;

3) Plaintiff was rejected despite plaintiff’s qualifications; and

4) The position remained open and plaintiff’s employer continued to seek applicants from persons of plaintiff’s qualifications.9

This test is elastic and malleable: changing depending on the facts and circumstances of a particular case.10 Once the plaintiff presents evidence to establish these elements, unlawful discrimination is presumed.11 An employer then bears the burden of producing (not proving) a legitimate, nondiscriminatory reason for its challenged job action, in response to which the plaintiff bears the burden of proving that the employer’s stated reasons are merely pretextual and that the real reason for the decision was discriminatory.12 Under this analysis, the burden of proof remains at all times with the plaintiff.13

Some cases, however, do not fit neatly within this burden-shifting framework. Indeed, in some cases, the plaintiff cannot establish a prima facie case under McDonnell Douglas, but can prove through more traditional means that a challenged job action was motivated by discrimination. Courts have dubbed these cases “direct evidence”14 cases.15 the distinction between cases involving circumstantial evidence (those proven under McDonnell Douglas ) and “direct evidence” is essential, for this determination establishes who bears the burden of proof on certain issues at trial.16

The Supreme Court first squarely tackled the issue of “direct evidence” in the context of employment discrimination claims in Trans World Airlines, Inc. v. Thurston, 469 U.S. 111 (1985). In Trans World, plaintiffs, pilots with Trans World Airlines, challenged TWA’s policy of permitting pilots disqualified from flying on any basis other than age to “bump” others on the seniority list for the flight engineer position, but refusing pilots disqualified from flying on the basis of age the same “bumping” privileges. The Court unanimously held that this policy (which TWA did not deny) constituted direct evidence of discrimination and, thus, that the lower court erred in granting summary judgment in favor of TWA on the basis that plaintiffs could not establish a prima facie case under McDonnell Douglas.17 However, the Court did not address what evidence, if any, short of a formal policy of discrimination would rise to the level of “direct evidence.”

The Supreme Court’s next decision regarding “direct evidence,” Price Waterhouse v. Hopkins,18 was much more controversial, generating only a plurality decision. In that case, the plaintiff, Ann Hopkins, was denied partnership on two occasions. During the course of her review for partnership, Price Waterhouse partners described Hopkins as “macho,” suggested she “overcompensated for being a woman,” advised her to take “a course at charm school,” criticized her use of profanity as unladylike, commented that she had “matured from a tough-talking somewhat masculine hard-nosed manager to an authoritative, formidable, but much more appealing lady partner candidate.” In explaining to Hopkins what she could do to improve her chances of becoming a partner with Price Waterhouse, one partner advised her to “walk more femininely, talk more femininely, dress more femininely, wear makeup, have her hair styled, and wear jewelry.”19

The plurality concluded (and Justice O’Connor, in her concurring opinion, agreed) that such comments demonstrated that sex stereotyping was a motivating factor in Price Waterhouse’s denial of Hopkins’ bid for partnership.20 A majority of justices also agreed that where a plaintiff shows that illegal criteria played a motivating part in an employment decision, the burden of proving by a preponderance of the evidence that it would have made the same decision even if it had not taken the prohibited criteria into consideration shifts to the employer.21 In attempting to identify what evidence would suffice to shift the burden of proof to an employer, Justice O’Connor opined that an employee must show by direct evidence that “an illegitimate factor played a substantial role in a particular employment decision.”22 Justice O’Connor attempted to define direct evidence by identifying what it is not: stray remarks in the workplace, statements by nondecision- makers, and statements by decision-makers unrelated to the decisional process. Unfortunately, defining direct evidence by what it is not has led to considerable confusion as to what facts will be considered “direct evidence.”

Like other circuits, the 11th Circuit recognized the concept of direct evidence even before that standard was adopted in Price Waterhouse,23 but has continued to grapple with what evidence is sufficiently “direct” to entitle a plaintiff to shift the burden of persuasion to the defendant with respect to the reason for a particular job action. It should be noted that the burden of persuasion with respect to the ultimate issue of discrimination remains with the plaintiff, even under this analysis. Only the burden of persuasion with respect to a defendant’s legitimate, nondiscriminatory reasons shifts to the defendant.24

Cases within the 11th Circuit regarding what facts constitute direct evidence are seemingly contradictory, and no clear theme emerges among these cases, despite attempts at reconciling those fact patterns.25 As a highlight to the current state of confusion, 11th Circuit Judge Tjoflat recently attempted to clarify the law with respect to “direct evidence” and the burden-shifting standard that accompanies it. Neither of the other two panel members signed on to that decision.26 Thus, an analysis of where we have been may help to shed light on where we may be going.

Since Price Waterhouse, the 11th Circuit has addressed the issue of “direct evidence” in the employment discrimination context on a number of occasions. Soon after Price Waterhouse, the 11th Circuit issued Equal Employment Opportunity Commission v. Alton Packaging Corp., 902 F.2d 920 (11th Cir. 1990), adopting the Supreme Court’s burden-shifting standard on direct evidence cases.27 the court noted that “ Price Waterhouse does not define direct evidence[,]” and, thus, adopted Justice O’Connor’s interpretation of what direct evidence is not.28 Thus was born the first post- Price Waterhouse definition of “direct evidence” in the 11th Circuit.

After articulating this definition, the court went on to hold that the statement, “if it was his company, he wouldn’t hire any black people,” made by the company’s general manager constituted direct evidence in this failure-to-promote case.29 the court reasoned that this statement does not fall under the negative definition it adopted from Price Waterhouse since the general manager was a decisionmaker and had made the remark in reference to hiring.30 the court opined that hiring and promotion are indistinguishable as the statement indicated “a decidedly negative attitude toward black people. . . . ”31 Absent from the court’s reasoning is any analysis of the fact that plaintiff had actually been promoted six times while employed at Alton Packaging, a fact which makes distinguishing between hiring and promotion decisions logical in determining, as the court has done in more recent years.32

The 11th Circuit’s next decision, Caban-Wheeler v. Elsea, 904 F.2d 1549 (11th Cir. 1990), appeal after remand, 71 F.3d 837 (1996), adds little to an understanding of what constitutes direct evidence. In that case, plaintiff asserted that she was terminated on the basis of her race, Hispanic, from her job as a child development specialist. For the first time since Price Waterhouse, the 11th Circuit articulated its own standard for direct evidence: “[D]irect evidence relates to actions or statements of an employer reflecting a discriminatory or retaliatory attitude correlating to the discrimination or retaliation complained of by the employee.”33 the court relies solely on pre- Price Waterhouse case law for this definition, implying that Price Waterhouse did not change the status of the law in this circuit.34 the court held, without analysis, that the statement “the. . . program needed a black director” was direct evidence. However, it appears from that decision that the person accused of making this statement was uninvolved in the decision to terminate plaintiff and the statement concerned a position other than the one from which plaintiff was terminated.35 the court’s analysis does not address these facts, even though they are incongruous with a determination that the statement at issue was “direct evidence.”

The next significant decision on the issue of “direct evidence” came six years later in Trotter v. Bd. of Trustees of University of Alabama, 91 F.3d 1449 (11th Cir. 1996). In this case, the court held that racial slurs uttered by plaintiff’s supervisor were not direct evidence because plaintiff’s supervisor was not involved in the particular decision plaintiff challenged.36 Thus, the holding in this case turns on a fact completely overlooked by the court in Alton Packaging Corp., i.e., that a person can be a “decisionmaker” without being the “decisionmaker” with respect to a particular job action. Trotter makes clear that the latter is required.

The 11th Circuit continued its trend toward a narrow construction of “direct evidence” in Harris v. Shelby County Board of Education, 99 F.3d 1078 (11th Cir. 1996). In Harris, plaintiff applied for the position of principal at a local high school. During the course of considering plaintiff for that position, the superintendent of the school system stated that, because of the culture of the community, the school “did not need to employ a black.”37 the 11th Circuit dismissed this testimony in a footnote, finding that it did not constitute “direct evidence” because the “statements could by inference have more than one possible meaning[.]”38 Thus, the court added a new requirement to the mix: Evidence must not be subject to more than one interpretation to be “direct evidence.” Interestingly, the court identifies a pre- Price Waterhouse definition of direct evidence, one taken directly from Black’s Law Dictionary. According to Harris, direct evidence is evidence that “proves the existence of fact in issue without inference or presumption.”39

Further exemplifying this circuit’s shifting views on the issue of “direct evidence,” the court in Burrell v. Bd. of Trustees of Georgia Military College, 125 F.3d 1390, held that a statement by the person who terminated plaintiff that he “wanted to hire a man” for a position for which plaintiff applied did not constitute direct evidence of gender discrimination because it did not prove the existence of “discriminatory motive in his decision to terminate[.]”40 Although the Burrell court goes to great pains to distinguish the facts of that case from Alton Packaging Corp., the distinction is illusory. The Burrell court claims that “unlike Alton Packaging ’s broad-sweeping statements—the specific comment about a high promotion [in Burrell ] is circumstantial evidence in this employment termination case. . . . ”41 However, this distinction ignores reality: In Alton Packaging Corp., the decisionmaker stated that, if it were his decision, he would not hire blacks,42 and in Burrell the decisionmaker stated that he wanted to hire a man for the position at issue.43 these statements simply cannot be distinguished by saying that one is more broad than the other. The only real difference between these cases is the panel deciding them.

Like the narrow interpretation of “direct evidence” adopted in Harris, the court in Carter v. Three Springs Residential Treatment, 132 F.3d 635 (11th Cir. 1998), found that statements by a decisionmaker that she had “difficulty in understanding Afro-Americans. . . that. . . her experience and interaction. . . had been minimal with respect to black employees, and that [she had] a bias against blacks and she found that they were difficult for her to trust or get along with” did not constitute direct evidence because such statements were susceptible to more than one interpretation and required a “inferential leap between fact and conclusion.”44

Further muddling the waters, in Schoenfeld v. Babbitt, 168 F.3d 1257 (11th Cir. 1999), the 11th Circuit added another standard to the already over-seasoned mix: “[D]irect evidence is composed of ‘only the most blatant remarks, whose intent could be nothing other than to discriminate’ on the basis of some impermissible fact.”45 In this reverse discrimination case, the court held that statements by the decision-maker to the effect that he wanted women and minority applicants who were rejected to be reconsidered and had demanded a justification for why a male was selected over female candidates did not constitute direct evidence because “[a]lthough these statements suggest discrimination, they are not the type of ‘blatant remarks’ from which discrimination can be found without the aid of an inference.”46 Based upon these statements, there could be no question that race and sex were considered during the evaluation process—precisely what the Court in Price Waterhouse determined was contrary to Title VII. Nevertheless, the Schoenfeld court held that even such evidence, which clearly demonstrated a link between race and sex in the employment decision at issue, did not rise to the level of direct evidence.

The apparent inconsistencies between these cases, and the pains to which the 11th Circuit has gone to reconcile them,47 demonstrate the need for clarification in this area of the law. While the definition of “direct evidence” used by the 11th Circuit is unchanged, it is clear that the emerging trend is a constricted interpretation of what facts suffice to justify shifting the burden of proof to the defendant in employment cases. As one court aptly described this standard, “only the most blatant remarks” will be considered direct evidence in this circuit. This “standard” is really no standard at all, akin to the “I know it when I see it” standard that has been applied (and misapplied) to pornography for years.48 Unfortunately, what facts will constitute “direct evidence” remains very much up in the air—with plaintiffs relying upon older case law to establish that their facts fit within the definition of “direct evidence” and defendants arguing that, based upon later cases, the facts are not so “blatant” to be “direct evidence.” The struggle to understand and distinguish “direct evidence” will necessarily continue until the 11th Circuit accepts a rehearing of this issue en banc or until the Supreme Court issues additional guidance regarding the burden-shifting standard applicable to these cases. q

1 42 U.S.C. §§2000e et seq.
2 McDonnell Douglas Corp. v. Green , 411 U.S. at 800 (citing Griggs v. Duke Power Co. , 401 U.S. 424, 429 (1971)).
3 The Pregnancy Discrimination Act of 1971, 42 U.S.C. §2000e(k).
4 The Age Discrimination in Employment Act, 29 U.S.C. §§621 et seq.
5 The Americans With Disabilities Act, 42 U.S.C. §§12101 et seq .
6 See Price Waterhouse v. Hopkins , 490 U.S. 228, 241–2 (1989) (citations omitted).
7 Ramirez v. Sloss , 615 F.2d 163, 168 (5th Cir. 1980).
8 Grigsby v. Reynolds Metals Co. , 821 F.2d 590, 594 (11th Cir. 1987).
9 Id.
10 Id. , 411 U.S. at 802 n.13. The McDonnell Douglas burden-shifting standard of proof has been applied to virtually every law prohibiting employment discrimination. See, e.g., id. (Title VII); Willis v. Conopco, Inc. , 108 F.3d 282 (11th Cir. 1997) (ADA); Trans World Airlines v. Thurston , 469 U.S. 111 (1985) (ADEA); Byrd v. Lakeshore Hospital , 30 F.3d 1380 (11th Cir. 1994) (PDA); Rodgers v. Western-Southern Life Ins. Co. , 12 F.3d 668, 673 (7th Cir. 1993) (42 U.S.C. §1981).
11 United States Postal Svc. Bd. v. Aikens, 460 U.S. 711, 714 (1983) (“establishing a prima facie case, the plaintiff in a Title VII action creates a rebuttable “presumption that the employer unlawfully discriminated against” him.)
12 See McDonnell Douglas , 411 U.S. at 804.
13 See Texas Dep’t of Community Affairs v. Burdine , 450 U.S. 248, 253 (1981).
14 “Direct evidence” in the employment context is a term of art, distinguishable from the dictionary definition of “direct evidence,” i.e ., evidence that proves a fact in issue without inference or presumption. See Black’s Law Dictionary 460 (6th Ed. 1990). Additionally, Judge Tjoflat has recently reiterated that the term “direct evidence,” as used in the employment context, means something other than the dictionary definition. See Wright v. Southland Corp. , 1999 WL 688051 (11th Cir. 1999) (with one judge concurring in the judgment and one concurring in the result).
15 Price Waterhouse , 469 U.S. at 275.
16 See Lee v. Russell County Bd. of Ed. , 684 F.2d 769, 774 (11th Cir. 1982).
17 Id. , 469 U.S. at 121.
18 Id. 469 U.S. 111 (1985).
19 Id. , 490 U.S. at 235 (internal citation omitted).
20 Id. , 490 U.S. at 251–52 (plurality opinion) and 490 U.S. at 272 (O’Connor, J., concurring in judgment).
21 Id. , 490 U.S. at 258 (plurality opinion), and 490 U.S. at 261, 275–79 (O’Connor, J., concurring in judgment).
22 Id. , 490 U.S. at 274.
23 Ramirez , 615 F.2d 163.
24 See Wall v. Trust Co. of Georgia , 946 F.2d 805, 809–10 (11th Cir. 1991).
25 Wright , 1999 WL 688051.
26 Id.
27 See id. at 923–24.
28 Id. at 924.
29 Id.
30 Id.
31 Id. at 924 n.6.
32 Id. at 921. Compare Burrell v. Bd. of Trustees of Georgia Military College , 125 F.3d 1390 (11th Cir. 1997).
33 Id. at 1554.
34 Id. , citing Hill v. Metropolitan Atlanta Rapid Transit Authority , 841 F.2d 1533, 1539 (11th Cir. 1988); Thompkins v. Morris Brown College , 752 F.2d 558, 563 (11th Cir. 1985); Dunning v. National Industries, Inc. , 720 F.Supp. 924, 929, n.6 (M.D. Ala. 1989).
35 Caban-Wheeler , 904 F.2d at 1551–53.
36 91 F.3d at 1453.
37 99 F.3d at 1081.
38 Id . at 1078, 1083 n.2.
39 Id. at 1083 n.2 (citing Rollins v. TechSouth, Inc. , 833 F.2d 1525, 1528 n.6 (11th Cir. 1987), and quoting Black’s Law Dictionary 413 (5th Ed. 1979)).
40 125 F.3d at 1393.
41 Id., at 1394 n.7.
42 Alton Packaging Corp. , 901 F.2d at 924.
43 Id.
44 132 F.3d at 642.
45 168 F.3d at 1266 (citing Carter v. City of Miami , 870 F.2d 578, 582 (11th Cir. 1989), a decision which predates Price Waterhouse ).
46 168 F.3d at 1266.
47 See Wright , 1999 WL 688051.
48 See Jacobellis v. Ohio , 378 U.S. 184, 197, 84 S. Ct. 1676, 1683 (1964) (Stewart, J., concurring

Robyn S. Hankins practices labor and employment law in Ft. Lauderdale with Eckert Seamans Cherin & Mellott, LLC. Ms. Hankins received her B.A. in psychology, with high honors, from

Florida International University, and her J.D., with honors, from the University of Florida College of Law.

Labor and Employment Law