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Human Resource Guide
Race Discrimination: Proof Question in
Mixed-Motive Bias Cases May Reach High Court
By David Banks
What does it take for an employee claiming discrimination to beat an
employer’s request for dismissal and stay in court? Not too much,
according to a recent decision from the Sixth U.S. Circuit Court of
Appeals.
tives with another company; Freed supervised sales
trainers. Those objective factors raised doubt about
Baxter’s somewhat subjective reasons for promoting
Freed, allowing White to stay in court.
New Supervisor, New Game
Todd White, an African American, served as a sales representative at
Baxter for nearly twenty years. During that time, he earned promotions, won a company-paid sales reward trip, and received good evaluations.
Mixed-Motive Ruling
Employees claiming mixed-motive Title VII discrimination must show that a protected characteristic was simply a motivating factor for an adverse action, even though other factors were involved. The Sixth Circuit, unlike other circuits, said that in
mixed-motive Title VII cases, it wouldn’t use the three-part proof
requirements used in single-motive cases. Instead, it said employees
first had to show an adverse action and then show race was a motivating factor.
Then, several years ago, White received a new supervisor, Tim
Phillips. According to White, Phillips joked about his last name and
made comments that he considered racist. That year, White applied
for a promotion to regional sales manager. Carl Gold, Phillips’ manager, would make the decision, with input from two other managers.
Gold and the two managers interviewed five applicants, including
White and Maggie Freed, a Caucasian woman. Each interviewer independently ranked Freed first and White last. Gold chose Freed, even
though she was the only candidate who hadn’t been a Baxter sales
rep, because she was energetic and positive, had some prior management experience, prepared well for the interview, and offered
plans to boost sales. White, however, seemed “extremely aggressive” and “confrontational” to the interviewers and didn’t focus on
improving sales.
Around that time, White’s performance evaluation also suffered. He
was rated below midpoint for the first time and consequently received
a smaller raise than he would had he received a middle rating, which
he claimed he should have.
Employee Cries Foul
White sued under Title VII of the Civil Rights Act of 1964, charging single-motive race discrimination in the promotion decision and mixedmotive discrimination in his performance review.
On his single-motive claim, White first had to prove a prima facie
(minimally sufficient) case of discrimination, namely, that he was in a
protected class, was qualified for the job, was treated adversely, and
was replaced by or treated differently than someone not in the class.
Baxter then had to show a nondiscriminatory reason for the action,
which White then had to prove was a pretext for discrimination.
The Sixth Circuit found that White made out his prima facie case and
that Baxter offered a nondiscriminatory reason for promoting Freed.
The appeals court, however, found that White had produced enough
evidence of pretext. He had an MBA; Freed did not. He had been a
Baxter sales rep; Freed had not. He had supervised sales representa-
White’s lower evaluation and smaller raise were adverse actions, the
court said. His circumstantial evidence that race was a motivation
included Phillips’ allegedly racist remarks plus evidence that Phillips
used Gold’s harsher evaluation standard on him instead of a more
favorable standard that other Baxter sales supervisors
used in evaluating their sales reps. That was
enough to create a genuine issue of fact about
whether race was a motivation and to keep White
in court, the Sixth Circuit said.
Takeaway for Employers
Interestingly, the Sixth Circuit said that issues of an
employer’s motivations are fact-intensive and difficult to determine at the pretrial dismissal stage “and
thus will typically require sending the case to the jury.”
That’s a tough message for employers defending mixedmotive cases. On the decision to promote, the court signaled
employers to use care in relying on subjective factors (Freed’s
enthusiasm) more heavily than objective factors (White’s MBA). In
addition, White’s supervisor’s allegedly racist comments hurt Baxter’s
defense of his single-and mixed-motive claims of discrimination and
underlined the importance of training managers to be careful with
their words. Overall, the case underscores the importance of keeping
workplace disputes out of court in the first place.
David Banks is an employment law attorney at the law firm of Cades
Schutte and a member of the Society for Human Resource
Management Hawaii Chapter (SHRM Hawaii). This article is an
excerpt from the Hawaii Employment Law Newsletter
(http://www.hrhero.com), a monthly Lee Smith Publication, of which
David Banks is the editor-in-chief. It was prepared for informational
purposes and is not a substitute for legal advice.