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4-2016 The nflueI nce of Justice Thurgood Marshall on the Development of Title VII Jurisprudence Wendy B. Scott Mississippi College School of Law, [email protected]

Jada Akers

Amy White

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Recommended Citation Wendy B. Scott, Jada Akers, and Amy White (2016) "The nflueI nce of Justice Thurgood Marshall on the Development of Title VII Jurisprudence," St. John's Law Review: Vol. 89: No. 2, Article 9.

This Article is brought to you for free and open access by the Faculty Publications at MC Law Digital Commons. It has been accepted for inclusion in Journal Articles by an authorized administrator of MC Law Digital Commons. For more information, please contact [email protected]. St. John's Law Review Volume 89 Number 2 Volume 89, Summer/Fall 2015, Numbers 2 Article 9 & 3

April 2016 The nflueI nce of Justice Thurgood Marshall on the Development of Title VII Jurisprudence Wendy B. Scott

Jada Akers

Amy White

Follow this and additional works at: http://scholarship.law.stjohns.edu/lawreview Part of the Civil Rights and Discrimination Commons

This Symposium is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in St. John's Law Review by an authorized administrator of St. John's Law Scholarship Repository. For more information, please contact [email protected]. 37692-stj_89-2-3 Sheet No. 142 Side A 04/08/2016 13:04:55

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KERS HITE B. A 671 W MY ADA NTRODUCTION ENDY J A I W . 375, 379 (1995). Evolving Conceptions of Equality Under Title VII: Congress, however, only gave the EEOC Congress, however, only gave As written, Title VII was broad and left As written, Title VII was broad 2 3 EV R

Title VII at Forty: A Brief Look at the Birth, Death, and L. Thirty Years of Title VII’s Regulatory Regime: Rights, Theories,

. Title VII of the Act was implemented to 1 LA

TITLE VII JURISPRUDENCE VII JURISPRUDENCE TITLE , 46 A DOC . at 379–80. COTT Assistant District Attorney in North Carolina’s Prosecutorial District 5. Assistant District Attorney in North Carolina’s Prosecutorial District 5. Assistant District Attorney in North Carolina’s Prosecutorial District 3A. Assistant District Attorney in North Prosecutorial District 3A. Carolina’s Id. Robert Belton, Martha Chamallas, Ronald Turner, Dean and Henry Vaughan Watkins and Shelby Watkins McRae of Professor The Civil Rights Act of The Civil Rights the noble goal of 1964 had L.J. 431, 433 (2005) (footnote omitted) (quoting 42 U.S.C. § 2000e-5(b) (2012)).

. . 305, 305–06 (1983). 2 3 4 1 † †† ††† MARSHALL ON THE DEVELOPMENT OF THE DEVELOPMENT ON MARSHALL M K MP EV THE INFLUENCE OF JUSTICE THURGOOD THURGOOD OF JUSTICE THE INFLUENCE Disparate Impact Theory and the Demise of the Bottom Line Principle eliminate discrimination in the workforce and “created an Equal Employment Commission Opportunity (EEOC) to administer and enforce the statute.” eliminating discrimination. and the Act “addressed Specifically, prohibited discrimination in public accommodations, public programs,school education, federally-funded and private sector employment” protected based on race, sex, religion, and other classifications. E R FINAL_S Resurrection of the Disparate Impact Theory of Discrimination and Realities “the authority to seek enforcement methods by ‘informal of but not the authority to conference, conciliation, and persuasion’ compel compliance.” Congress left the task of determining what constituted a determiningCongress left the task of what a constituted enforcement ambiguous and violations undefined. Law, Mississippi College School of Law. Law, Mississippi College School of Law. C Y 37692-stj_89-2-3 Sheet No. 142 Side A 04/08/2016 13:04:55 A 04/08/2016 142 Side Sheet No. 37692-stj_89-2-3 37692-stj_89-2-3 Sheet No. 142 Side B 04/08/2016 13:04:55

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3/24/16 , 105 H ” [Vol. 89:671 NGINEER E all’s influence on the all’s influence OCIAL into a vehicle for social reform into a vehicle for “S 5 He Justice Marshall’s described 7 A Tribute to Justice Thurgood Marshall AKING OF A M Heof Justice attributed the unique views 6 ST. JOHN’S LAW REVIEW HE note 3, at 433 (internal quotation marks omitted).

I. T supra DOC .

COTT Belton, William J. Brennan, Jr., Id. In a tribute to Justice Marshall, Justice William Brennan Justice Thurgood MarshallJustice Court during sat on the Supreme . 23, 23 (1991). 5 6 7 EV III examines changes in the Court’s jurisprudence before the Justice Marshall retired from the majority the bench. As of Justices became less sympatheticof African to the protection Americans in the workplace, Justice Marshall’s voice of dissent emerged. IV concludes with Part a discussion of the Civil Rights Marshall’sAct of 1991, which vindicated Justice choice to dissent by adopting many from of the positions taken in his departure the majority view. that equalized access to the courts by allowing employees to the courts by allowing that equalized access to take employers’action against private discriminatory This practices. Article Justice Marsh highlights a brief Part I presents development jurisprudence. of Title VII Marshall’soverview of Justice life personal and professional before becoming a Justice to show how influenced his experience the development philosophy. Part II summarizes of his judicial some approach to the Court’s issues left unresolved by of the Congresspassage of Title VII. in the initial Specifically, it explores how the Court determined what would constitute a of pleading and proof. Part violation of Title VII and standards addressed what he believed madeaddressed what he believed Justice Marshall a unique voice on the Court. Marshall special voice that he added to the Court’s to “the deliberations and decisions.” voice as a first person voice of authority and reason withvoice as a first person voice the “unwavering message” that “the Constitution’s protections must not be denied to anyone and that the Court must give its to constitutional doctrine the scope and the sensitivity needed R 672 proof and the of pleading, standards the the Act, of violation enforcement for successful required the Supremeof Title VII to the UnitedCourt of States. twentythe first by the Court rendered years of decisions These seminal Title VII. interpreting transformed decisions Title VII fromthing” a “poor enfeebled FINAL_S 37692-stj_89-2-3 Sheet No. 142 Side B 04/08/2016 13:04:55 B 04/08/2016 142 Side Sheet No. 37692-stj_89-2-3 37692-stj_89-2-3 Sheet No. 143 Side A 04/08/2016 13:04:55

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, 7 H 3/24/16 ARSHALL AND RUSADER FOR C M

: 673 Houston stressed ARSHALL HURGOOD 13 T M

: AW L Houston brought his social HURGOOD 15 T Justice Marshall Justice gained his IGHTS 9 R Making Bricks Without Straw: The NAACP Making Bricks Without Straw: The NAACP IVIL Upon graduating from Upon graduating Lincoln, he C USTICE 10 at 6 (1994) (internal quotation marks omitted).

, J 16 AKING note 11, at 1131. LAND

Justice Brennan believed that what shaped shaped what that believed Brennan Justice

B . 1121, 1130 & n.49 (2001). 12

, M 8 EV The Glorious Jurisprudence of Thurgood MarshallThe Glorious Jurisprudence of Thurgood supra R 1936–1961,

, L.

ALTON . USHNET INFLUENCE OF JUSTICE MARSHALL OF JUSTICE INFLUENCE W T LA OURT At Howard, Marshall came under the mentorship of

. 113, 115 (2013). An effective lawyer needs to explain to the courts An effective lawyer needs to C 11 V. 14 31 (2001). EV DOC

. R , 52 A

Marshall’s time working with the NAACP “solidified his his the NAACP “solidified with working time Marshall’s ’ ARK ANDALL COTT 17 U.W. Clemon & Bryan K. Fair, M Id. Id. Id. R Clemon & Fair, Lynn Adelman, OL Id. Id. UPREME Shortly after joining the cadre of lawyersShortly after joining the cadre assembled by Houston should regard themselves taught that lawyers as P S

11 12 13 14 15 16 17 8 9 10 &

M K IBERALISM Houston, Marshall became the General Counsel of the NAACP in of the NAACP in Counsel became the General Marshall Houston, 1938. engineers of the social order and, as such, must how decide social order and, engineers of the to use the law to construct a fair and just society. how their decisions impact the lives of everyday people and “how rules actually operate[] in society.” Justice Marshall’sJustice of his personal experience voice were judicial as an advocatethe years he spent and racial segregation “using argument of legal the tools between the gap to close reality.” ideal and constitutional that lawyers should understand more than just the legal rules; social setting in which the law they should also appreciate “the operated.” Charles Hamilton Houston“social to the and was exposed engineering” theory. L L. 2015] result.” that assure FINAL_S Legal Defense Fund and the Development of Civil Rights Law in Alabama of Civil Rights Law in Alabama Legal Defense Fund and the Development 1940–1980 engineering theory to life through his work with the National engineering theory to life through (“NAACP”) People of Colored for the Advancement Association along with his mentee, Marshall, who assisted in the execution of this theory in the courts. enrolled in Howard Law School after being refused admission Law School after being refused enrolled in Howard to his home state law school at the University of Maryland because of his race. voice while attending college and law school. He attended school. He college and law attending voice while Lincoln University nurtured where faculty and fellow students equality. his belief in racial THE C Y 37692-stj_89-2-3 Sheet No. 143 Side A 04/08/2016 13:04:55 A 04/08/2016 143 Side Sheet No. 37692-stj_89-2-3 37692-stj_89-2-3 Sheet No. 143 Side B 04/08/2016 13:04:55

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HURGOOD 21 L. T

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15, 16 (2010).

19 L.

& Y ’ at 5 (1997) (citing Sandra Day O’Connor,

OL ONSTITUTIONAL P C

. OC S Thurgood Marshall, the Race Man, and Gender Thurgood Marshall, the Race Man,

and, through his judicial opinions, he and, through his judicial opinions, J. AKING

23 . Thurgood Marshall’s Legacy 1961–1991, note 11, at 1131.

A , , M ST. JOHN’S LAW REVIEW A Tribute to Justice Thurgood Marshall note 20. note 10, at 121. note 10, at 117. supra , 18 V OURT note 3. Influenced by the NAACP’s belief that equality that equality belief the NAACP’s by Influenced C 18 USHNET supra T supra supra

supra V. As a social engineer, he knew As a social engineer, that access to the courts, DOC Marshall “was sympathetic deeply of to the efforts . UPREME In a nation struggling to move past Jim Crow Era 20 22 S 25 ARK COTT Taunya Lovell Banks, Chambers, Adelman, M Belton, Adelman, Clemon & Fair, Julius L. Chambers, Thus, as Justice Brennan observed, Marshall’sThus, as Justice as experience Marshall these cases to achieve social used the litigation of 21 22 23 24 25 18 19 20 an African-American lawyer the foundation for his laid unwavering jurisprudential commitment, during his tenure on and fairness through the judicial the Court, to secure equality process. segregation, Marshall would Title VII as another interpret means hasten the eradication of discrimination to in the workplace and employment practices. Thurgood Marshall: The Influence of a Raconteur 1250 (1992). AND THE subordinated groups,” 674 a committed that conviction accomplish could lawyer and skillful amounta considerable create a more the struggle to in and just equal society.” FINAL_S (1992); Byron R. White, Equality in the Courts The opinions he authored in Title VII cases exemplify his belief The opinions he authored in Title theory and demonstratein the social engineering his endorsement VII could be “a powerful idea that Title of the employmentengine for social change by equalizing opportunities” for all. was achieved through the courts, Marshall the courts, through was achieved a spearheaded campaign nation and challeng[e] the bring cases “throughout to by all meanssegregation necessary.” especially the federal courts, wasespecially the federal the “primary vehicle to pursue the onlyequal rights” and way to change society. reform legal system the nation’s and, in doing so, “altered and turn legitimizedinterest advocacy which in created public American democracy the promise by securing access to of equal powerless in our for the disadvantaged and justice under law society.” gave voice to those directly impacted by the Court’s decisions. 1215, 1216 (1992)). 37692-stj_89-2-3 Sheet No. 143 Side B 04/08/2016 13:04:55 B 04/08/2016 143 Side Sheet No. 37692-stj_89-2-3 37692-stj_89-2-3 Sheet No. 144 Side A 04/08/2016 13:04:55

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31 3/24/16 ITLE ITLE However, T 29 675 raised the issue of raised the issue EARS OF EARS Y tle VII opinions during during tle VII opinions ng condition “is a bona Phillips Title VII she alleging that ARLY ARLY

E 26 The Court reasoned that an The Court reasoned that an 30 In a per curiam opinion, the Court 28 He the Court cautioned not to “[fall] into 32 ARSHALL AND THE AND ARSHALL M INFLUENCE OF JUSTICE MARSHALL OF JUSTICE INFLUENCE

DOC . USTICE USTICE (internal quotation marks omitted). at 543. at 544. at 544–47 (Marshall, J., concurring). at 545. COTT 400 U.S. 542 (1971) (per curiam). Id. Id. Id. Id. Id. Id. Id. The Supreme Court first issued its Ti Court first The Supreme The Supreme opinion in a Title VII case Court issued its first Seeing the potential for the entrenchment of a gender-based 26 27 28 29 30 31 32 33 II. J II. Phillips v. Martin Marietta Corp. M K in Justice Marshall’sJustice the Court those opinions, tenure. In a determined what and how of Title VII constituted a violation and proof the pleading meet could successfully litigant requirements. Violation A. Defining stereotype in Title VII case law, Justice Marshall wrotestereotype in Title VII case law, a special concurring opinion. 2015] FINAL_S Phillips commenced an action under employmenthad been denied the because of her sex since employer applications from was not accepting job women with children. preschool-aged the trap of assuming that the Act permits ancient canards about the proper role of women to be a basis for discrimination.” employer could demonstrate that the hiri employer could demonstrate that reasonably necessary to the fide occupational qualification normal operation of that particular business or enterprise.” held “that persons of like qualifications [should] be given held “that persons of like employment opportunities irrespective of their sex.” the Court held that “the existence of such conflicting familythe Court held that “the existence obligations, if demonstrably more relevant to job performance for a woman man, than for a for could arguably be a basis distinction” in hiring practices. whether an employer’s practice of hiring men, but not women, but not women, hiring men, practice of whether an employer’s with a violation of Title VII. school-aged children constituted

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3/24/16 [Vol. 89:671 The Court reasoned that 38 allowed for an expansion of The EEOC guidelines were The EEOC guidelines Using the EEOC guidelines, the Supreme Court broadened a more equal workplace with a more equal workplace with 37

39 35 , joined a unanimous Court, which unanimous Court, joined a Griggs aligned with Justice Marshall’s prior Griggs ST. JOHN’S LAW REVIEW The Court went further, holding that, based further, holding that, based The Court went 36 Acknowledging the “built-in headwinds” facing Acknowledging the “built-in 40

34 DOC . at 547. at 435 at 430, 434. at 433–34. at 434. at 431. at 432 (internal quotation marks omitted). Griggs v. Duke Power Co. Griggs v. COTT

Id. 401 U.S. 424 (1971). Id. Id. Id. Id. Id. Id. The holding in In 41 34 35 36 37 38 39 40 41 an “administrative of the Act,” and “the enforcing interpretation agency is entitled to great deference.” the Court held that Congress intended to allow Title VII for “the removalartificial, arbitrary, and unnecessary barriers to of employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification.” the legislative history of the Act supported the guidelines issued the legislative history of the Act by the EEOC, as and, therefore, the guidelines should be treated expressing the intent of Congress. 676 employment that instead urged limited be should opportunities employment“only by to the sex of the neutral as that are criteria applicant.” FINAL_S on the legislative history of the Act and guidelines issued by the history of the Act and guidelines on the legislative (“EEOC”), Commission Opportunity Employment Equal require proof of discriminatoryCongress did not for a intent under Title VII. violation to occur minorities entering the workforce, in broadening Title VII to allow for facially neutral discrimination, the Court allowed for greater access to the remedial measures available under Title VII. access to the courts under Title VII. Justice Marshallaccess to the courts under Title joined in laying a foundation to construct “scores of cases involving many of workers thousands who ha[d] work toward equalizing employment as a social opportunities engineer. More importantly, the scope of whatthe scope that violates conduct discriminatory constitutes Marshall Justice Title VII. held that an employer violated Title VII whenit utilized a was out of not justified practice or procedure that facially neutral impacted and, in application, negatively business necessity a particular group. 37692-stj_89-2-3 Sheet No. 144 Side B 04/08/2016 13:04:55 B 04/08/2016 144 Side Sheet No. 37692-stj_89-2-3 37692-stj_89-2-3 Sheet No. 145 Side A 04/08/2016 13:04:55

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50 3/24/16 at 4) (internal

677 If the collective- 48 , two white employees Griggs v. Duke Power Co., 67

J., Mar. 9, 1971,

. 49 T S Justice Marshall authored ALL 51 , Supreme Court Bars Employment Tests The Court acknowledged that The Court acknowledged W McDonald

46 , of obtaining judicial enforcement of L.J. 1301, 1304–05 (1990). Justice Marshall a again joined Alexander v. Gardner-DenverAlexander Co. 45 In In ASTINGS 43 H Public Remedies for Private Wrongs: Rethinking the Title

Toward a Definitive History of , 41 229–31 (2014) (quoting

INFLUENCE OF JUSTICE MARSHALL OF JUSTICE INFLUENCE

197, The Court found that “the private right of action The Court found that “the

. 47

DOC . 42 EV at 45. at 45. at 51. McDonaldFe Trail Transportation Co. v. Santa R at 49.

COTT L. Minna J. Kotkin, 415 U.S. 36 (1974). Id. Id. Id. Id. Id. 427 U.S. 273 (1976). 477 U.S. 57 (1986). David J. Garrow,

. In The Court continued to issue opinions that allowed for a that allowed to issue opinions continued The Court 43 44 45 46 47 48 49 50 51 42 M K AND Title VII gave private litigants the power to “not only redress[] private litigants the power to Title VII gave [their] own also vindicate[] the important injur[ies] but discriminatorycongressional policy against employment practices.” were fired because of a theft for which they were held jointly and were fired because of a theft for opinions advocating for the broad interpretation of Title VII to opinions advocating for the broad achieve its remedial purpose. In Meritor Savings Bank v. Vinson V 2015] promotions jobs or denied been tests of non-job-related because which ha[d] come into widespread Title VII since passage of use in 1964.” consistent with Act’s the . . . Title VIIconstruction of “broad remedial purposes.” FINAL_S VII Back Pay Remedy remains essential means an Title VII” because an employee’s to be free from individual right discriminatory practices cannot be waived. Court demonstratedcommitment its expanding the right of to employees suits against employers to bring private for discriminatory practices. bargaining process barred an employee’sbargaining process barred an a private right to bring “would defeat the paramountsuit under Title VII, it VII.” congressional purpose behind Title unanimous VII allowed an aggrieved Court to hold that Title despite first redress through private action party to seek under a nondiscriminationpursuing arbitration a clause of agreement.collective-bargaining That Result in Anti-Negro Discrimination quotation mark omitted). C Y 37692-stj_89-2-3 Sheet No. 145 Side A 04/08/2016 13:04:55 A 04/08/2016 145 Side Sheet No. 37692-stj_89-2-3 37692-stj_89-2-3 Sheet No. 145 Side B 04/08/2016 13:04:55

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Even 56 McDonald 3/24/16 The Court 59 [Vol. 89:671 Despite the shared shared the Despite . 387, 415 (2004). 52 EV Shades of Race: An Historically R

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Civil Rights 60 established that a claim of a hostile W.

, 26 ST. JOHN’S LAW REVIEW , 427 U.S. at 276. The Court was faced with the question of exactly of exactly with the question was faced The Court

54 The white employees The white action for relief brought an DOC . 53 By opening Title VII to include claims By opening of racial at 279. at 284. at 67–68. 57 COTT McDonald Id. Id. Id. Id. Id. Michael J. Fellows, Note, Meritor Sav. Bank v. Vinson, 477 U.S. 57, 66–67 (1986). Id. Meritor Savings Bank Writingthe majority, for Justice Marshall placed “racial 52 53 54 55 56 57 58 59 60 expanded the meaning of racial discrimination point of past the minority discrimination and allowed completely for equal access Act. to the courts and relief under the work environmentto sexual harassment due is considered sexual discrimination and, thus, a violation of Title VII. which Title VII was races meant from to protect discrimination. discrimination to a majorityJustice Marshall group, broadened for individuals. VII to unprecedented breadth the scope of Title Nearly discrimination any person can allege racial without first making a primathat he is a member facie showing of a racial minority, in the wake of committing even fireable offenses. expanded the relief available to victimsexpanded the relief available of hostile environment sexual harassment discriminationthat the holding by discriminationan did not have to have an economic on effect employee actionable. to be 678 employee. a black with liable severally FINAL_S the EEOC in holding that the 1980 guidelines issued by the the EEOC in holding that the as there defined, is a harassment,’ agency “specifying that ‘sexual form discrimination of sex VII,” and since its prohibited by Title Informed Reading of Title VII Consistent with Justice Marshall’s vision of equality, discrimination employment in private whites against on the same terms as racial discrimination nonwhites.” against under Title VII’s prohibition against racial discrimination against racial VII’s prohibition under Title in the workplace. liability, the whiteliability, employees employee were the black fired and was not. discharge[,] . . . this does not diminish retaining the illogic in when . . “theft . discharge[,] of property . . . [is guilty employees of one color while discharging those of another a] . . . compelling color.” basis for 37692-stj_89-2-3 Sheet No. 145 Side B 04/08/2016 13:04:55 B 04/08/2016 145 Side Sheet No. 37692-stj_89-2-3 37692-stj_89-2-3 Sheet No. 146 Side A 04/08/2016 13:04:55

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The Court 679 64 63 Hereiterated his 65 Justice Marshall voiced his 66 The Court again refused to limit again refused The Court employee’s an 61 INFLUENCE OF JUSTICE MARSHALL OF JUSTICE INFLUENCE

DOC . at 72. at 72. at 65–66. at 67 (second alteration in original) (quoting Henson v. City of Dundee, at 74. at 74–75. COTT Id. Id. Id. Id. Id. Id. Id. Justice Marshall with concurred the Court’s holding that 61 62 63 64 65 66 67 M K hostile environment discrimination sex constituted discrimination as defined by Title VII. belief that, in analyzing employer liability under Title VII for the acts of employees, established that the act of Title VII law clearly a supervisory employee or agent is imputed to the employer. 2015] may a plaintiff that . . . uniformly have “courts issuance, held proving that discrimination by Title VII a violation of establish work or abusive created a hostile on sex has based environment.” FINAL_S 682 F.2d 897, 904 (11th Cir. 1982)). His in his concurrence rejection of the Court’s agency theory further broadening the scope on demonstrates his staunch stance to perceive the far-reachingof Title VII and his ability ramifications of such a decision. However, the Court set limitations of an employee on the ability harassmentto initiate a sexual claim. The Court held that “[f]or sexual harassment be actionable, it must to be sufficiently severe alter the conditions of [the victim’s]or pervasive ‘to employment ” abusive working environment.’and create an ability to bring private suit under Title VII suit under Title bring private ability to the by finding that “mere against and a policy procedure of a grievance existence discrimination,” regardless of whether the employee the invoked not insulate an employerprocedure, does from liability. further held that it would not issue a definitive ruling as to when it would not issue a definitive further held that an employer for the actions of supervisors. is liable philosophy that every employee should have a workplace environment that is free from discriminatory practices by sex expansion of the definition of supporting the Court’s discrimination. Justice Marshall, however, with disagreed the employerCourt’s refusal to rule on liability absent actual knowledge of the harassment. C Y 37692-stj_89-2-3 Sheet No. 146 Side A 04/08/2016 13:04:55 A 04/08/2016 146 Side Sheet No. 37692-stj_89-2-3 37692-stj_89-2-3 Sheet No. 146 Side B 04/08/2016 13:04:55

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72 1205, 1216 (1981)

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Justice Marshall L. 71 The Court reaffirmed

. 74 AND Because Title VII did not Because Title 69 , 34 V ]. ST. JOHN’S LAW REVIEW The Court granted certiorari “[i]n order to The Court granted certiorari Burdens of Pleading and Proof in Discrimination Cases: Burdens of Pleading and Proof in Discrimination

73 note 21. Burdens of Pleading .

supra DOC The constant battle to determine The constant how one could . at 1226. at 797–99. 70 at 1207–09. at 798. COTT Robert Belton, Id. Id. Id. Banks, McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Id. Id. The Court also determinedThe Court and proof the pleading The mostsignificant case to deal with pleading and proof 68 69 70 71 72 73 74 75 procedurally bring forth and prove a Title VII claim forth and prove a Title procedurally bring marked Justice Marshall’s time on the Court. advocated for lower pleading and proof requirementsadvocated for lower in keeping with to his position that each citizen should have equal access court system,the courts, especially the federal based on his view of the courts as the primary engine for social reform. standards allow courts to determine which in an action party must support what evidence is necessary to present evidence and or rebut a claim discrimination. of 680 B. and Proof Pleading requirements Justice Marshall’s VII during under Title tenure. requirementThe burden-of-pleading to give parties functions to must notice of what an action in a complaint be alleged or answer or rebuff the allegations. to substantiate FINAL_S [hereinafter Belton, Toward a Theory of Procedural Justice

clarify the standards governing the disposition of an action clarify the standards governing challenging employment discrimination.” address the requirements and pleadings, the courts were of proof left to determineprocedural framework the intended by the statute. an employee’s VII, holding right to bring private suit under Title that “a prior Commission determination of reasonable cause [is] to raising a claim”not a jurisdictional prerequisite under Title and . . . VIIAct “restrict a complainant’s nor does the right to sue we will not engraft on the statute a requirement which may inhibit the review of claims of employment discrimination.” Corp. v. Green standards during the Marshall Era was 37692-stj_89-2-3 Sheet No. 146 Side B 04/08/2016 13:04:55 B 04/08/2016 146 Side Sheet No. 37692-stj_89-2-3 37692-stj_89-2-3 Sheet No. 147 Side A 04/08/2016 13:04:55

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to justify 3/24/16 McDonnell 78 681 In other words, 80 set forth the general Under the second 77 The Court was careful to 79 . 103, 122 (2005).

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Recapturing Summary Adjudication Principles in McDonnell Douglas , 58 SMU INFLUENCE OF JUSTICE MARSHALL OF JUSTICE INFLUENCE

But while DOC 76 . at 802 (“This may be done by showing (i) that he belongs to a racial (i) at 802 (“This may be done by showing that ultimately afforded plaintiff-employees both the 83 at 801–05. at 802–03. at 804. COTT Id. Id. Id. Id. Id. Henry L. Chambers, Jr., Id. Id. First, the Court held that in a private Title VII suit, the Title VII suit, that in a private Court held First, the

Justice Marshall the unanimous joined in opinion 78 79 80 81 82 83 76 77 M K Disparate Treatment Cases employee prima establishing a initial burden of has the case facie of discrimination the employer. against articulate that the inquiry did not end there. articulate that pleading requirements for Title VII cases, the Court began to garner Justice Marshall’scarve out exceptions that did not vote. 2015] test pleading proof and a three-prong established Court then The to determine employmentsufficiency of the discrimination claims substantiate offered to and the proof pleadings and defenses. FINAL_S minority; (ii) that he applied and was qualified for a job for which the employer was minority; (ii) he was rejected; and that, despite his qualifications, seeking applicants; (iii) that, after his rejection, the position remained open and the employer continued (iv) to seek applicants from persons of complainant’s qualifications.”). Therefore, the Court identified a third prong that allowedCourt identified a third prong Therefore, the an employee fair opportunity to show that [the employer’s] “a stated reason for” its actions was, in fact, a pretext for discrimination and that a legitimate nondiscriminatory the reason for employer’s action did not exist. its actions, effectively allowing the employer to rebut an allowing its actions, effectively employee’s claim of discrimination. Title VII did not permitTitle VII did not an employer discrimination to disguise by attemptingthe discrimination to cover with pretext. Douglas proof and the power to rebut an opportunity to offer the initial employer’s also gave courts pretextual justification. The decision the ultimate power to hear and determine conclusive the employer’s reasoning and the validity of the employer’s decision making. prong of the test, “[t]he burden . . . shift[s] to the employer to . . . “[t]he burden prong of the test, articulate some legitimate, nondiscriminatory reason” C Y 37692-stj_89-2-3 Sheet No. 147 Side A 04/08/2016 13:04:55 A 04/08/2016 147 Side Sheet No. 37692-stj_89-2-3 37692-stj_89-2-3 Sheet No. 147 Side B 04/08/2016 13:04:55

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87 3/24/16 [Vol. 89:671 The established The Court held that 91 93 and thus, “absent a 92

94 Trans WorldHardison Inc. v. Airlines, ST. JOHN’S LAW REVIEW The Court held that “religion” encompasses “religion” Court held that The 85

Despiteefforts of Trans World the (“TWA”), Airlines defined religious discrimination under Title VII and set religious discriminationdefined Title VII under DOC 86 . in adopting the seniority system in adopting the seniority and concluded that at 73–74. at 83. at 79, 81. at 82. at 80–81. at 82. at 80–81. at 82 (quoting Hardison v. Trans World Airlines, 375 F. Supp. 887, 883 89 COTT Id. Id. Id. Id. Id. Id. Id. Id. Id. Id. 432 U.S. 63, 66 (1977). The SupremeThe discrimination religious its first decided Court 85 86 87 88 89 90 91 92 93 94 84 under Title VII, TWA was to “carve out a special not required exception to its seniority system in order to help Hardison to meet his religious obligations.” discriminatory purpose, the operation of a seniority system cannot be an unlawful employment practice even if the system has some discriminatory consequences.” religious observance and practice and that an employer practice and observance and religious must make reasonable accommodations for an employee, unless an employer demonstrates reasonably accommodate that it could not an employee the employer’s causing undue hardship on without business. TWACourt found that a neutral seniority system had adopted in order to comply collective-bargaining agreements. with various case under Title VII in Title VII in case under 682 FINAL_S however, it could not reasonably accommodatehowever, it could Hardison’s religious requirements without collective- violating the bargaining agreements between TWA and its employees. (W.D. Mo. 1947)). Rather, the collective-bargaining agreements,Rather, the collective-bargaining not the employer, determined when an employee was scheduled to work based on seniority, and TWA of the agreement if it would be in violation interfered to accommodate Hardison. Hardison Hardison for claims of proof the standard involving collective-bargaining agreements. The Court found that there was“no suggestion of discriminatory intent” “seniority system was not designed with the intention to discriminate against religion,” TWA’s inability to reasonably accommodate religious Hardison’s to an intent to discriminate.practices could not be attributed 37692-stj_89-2-3 Sheet No. 147 Side B 04/08/2016 13:04:55 B 04/08/2016 147 Side Sheet No. 37692-stj_89-2-3 37692-stj_89-2-3 Sheet No. 148 Side A 04/08/2016 13:04:55 AM AM

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3/24/16 683 Pullman-Standard by holding, “[A]bsent Thus, whenever there 100 also addressed proof also addressed 99 Hardison

s on Title VII. 98 , 432 U.S. at 82) (internal quotation marks

Justice Marshall felt that the Court’s 101 97 Hardison because doing so would have an impact doing so would because all on 96 INFLUENCE OF JUSTICE MARSHALL OF JUSTICE INFLUENCE Heexpressed his concern stating:

102 Justice Marshall’s Justice that “an employer dissent notes DOC . at 277 (quoting 95 at 294–95 (Marshall, J., dissenting).

at 88 (Marshall, J., dissenting). at 96. at 85 (majority opinion). at 89 (Marshall, J., dissenting).

COTT Id. Id. Id. Id. Id. Id. Id. 456 U.S. 273 (1982). Justice Marshall with disagreed efforts the Court’s continued Pullman-Standard v. Swint Justice MarshallJustice vehemently from dissented Court’s the [P]lacing such a burden on plaintiffs who[P]lacing such a burden on plaintiffs challenge seniority systems with admitted discriminatory impact, a burden never before imposedsuits brought under Title VII, frustrates in civil 95 96 97 98 99 100 101 102 M K to enforce stricter pleading and proof requirementsto enforce stricter pleading on employees. omitted). cannot . . . sign[] a contract that precludes all reasonable all reasonable that precludes sign[] a contract . . . cannot accommodations” brought to fruition Justice Marshall’sbrought to fruition fear that the Court was systematically narrowing the scope of Title VII and constricting access to the courts by imposing more standards. stringent proof in The Court reinforced its ruling a discriminatory purpose, the operation of a seniority system cannot be an unlawful employment practice even if the system has some discriminatory consequences.” requirements and marksMarshall’s one of Justice most opinion significant dissenting interpretation of the statute effectively nullified Title VII by not the statute effectively nullified interpretation of allowing employees to unions with collective- who belonged bargaining agreementsbring suit for discrimination to without proof of discriminatory intent. decision, arguing that the holding arguing that decision, made “a mockery of the statute.” 2015] FINAL_S is a challenge to a seniority system under Title VII, it will require a trial on the issue of discriminatory intent to determine whether the employer adopted the system “because of its racially discriminatory impact.” of those “who do not observe the holy days on which mostholy days on observe the “who do not of those closed.” businesses are C Y 37692-stj_89-2-3 Sheet No. 148 Side A 04/08/2016 13:04:55 A 04/08/2016 148 Side Sheet No. 37692-stj_89-2-3 37692-stj_89-2-3 Sheet No. 148 Side B 04/08/2016 13:04:55 M K AM AM

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108 [Vol. 89:671 The Court approved 106 The government then then government The

105 103 which was decided during the which was decided during the not be unlawful under Title VII” not be unlawful under Title VII”

, The Court limited systematic 107 Hardison ST. JOHN’S LAW REVIEW

DOC the Court had to determinethe Court had to evidence could exactly what .

International Brotherhood of TeamstersInternational v. United at 352–53. at 295. at 336. at 339. at 381 (Marshall, J., concurring in part and dissenting in part). 104 , COTT Id. 431 U.S. 324 (1977). Id. Id. Id. Id. Id. In Although Justice Marshall concurred with the Court’s Although Justice Marshallwith the Court’s concurred an entire generation of . . . employees discriminatory into . . “freeze[s] and effectively Congress will of expressed the clearly . of generation an entire the Act.” that existed before patterns 103 104 105 106 107 108 109 sameterm, the majority had simultaneously enfeebled the the use of statistical proof to establish a primathe use of statistical proof to facie case of systematic discrimination. support allegations of discrimination.support allegations held that, as The Court plaintiff, “the Government the initial burden of making bore out a prima of discrimination.” facie case 684 The majority’s with conflicted position directly Justice Marshall’s and proof pleading that relaxed philosophy jurisprudential requirements social change. to effect access to courts ensured the Court left the burden of proof, Instead, by increasing potential victims of discrimination less avenues to effect with change and improve their position workplace. in the FINAL_S this case appears to broaden the burden-of-proof evidentiary this case appears to broaden evidence, Justice Marshallstandards by allowing statistical was quick to note that in had the burden of establishing, by a preponderance of the of establishing, by a preponderance had the burden the company’sevidence, that regularly conducted and standard operating procedure was discriminatory. States discrimination to employeroccurred after the actions that that “the routine application of a passage of Title VII, holding bona fide seniority system would because Congress did not intend to destroy any “vested seniority because Congress did not intend rights of employees simply because their employer had engaged in discrimination prior to the passage of the Act.” finding of discrimination based on the statistical evidence the Court of the he once again warned presented by the plaintiff, issued deference to the EEOC’s danger of failing to grant broad that rejected upholding guidelines and to prior decisions seniority systems that allow discriminatory practices. 37692-stj_89-2-3 Sheet No. 148 Side B 04/08/2016 13:04:55 B 04/08/2016 148 Side Sheet No. 37692-stj_89-2-3 37692-stj_89-2-3 Sheet No. 149 Side A 04/08/2016 13:04:55 AM AM

But But 12:13 The , and ,

116 shifted 112 Justice Justice 3/24/16 111 685

IDES led to inconsistencies in T Pullman-Standard , McDonnell Douglas note 68, at 1208–09. note 68, at 1224–25. HANGING HANGING Hardison C supra supra , , HE , 431 U.S. at 383. III. T Justice Marshall Justice Court failed argued that the

110 113 INFLUENCE OF JUSTICE MARSHALL OF JUSTICE INFLUENCE

Burdens of Pleading Burdens of Pleading DOC . With the requirement of showing discriminatory Cases such as at 384. 115 COTT 114 Pullman-Standard456 U.S. 273, 294 (1982) (Marshall, v. Swint, J., Int’l Bhd. of Teamsters Id. Id. Belton, McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Belton, In its attempts to clarify Title VII, the Court created 110 111 112 113 114 115 116 M K Marshallhad not objectively contended that the Court further examined history, and if it had, “it would legislative the Act’s have been compelled opposite conclusion.” to reach the confusion over the procedural frameworkconfusion over the procedural in discrimination cases. intent, employment discrimination became impossible nearly to effectively disappeared. prove, and the power of Title VII Court’s finding that seniority rights systemsCourt’s finding were se not per Title VII minimizedactionable under of Title VII and the scope foreshadowed the narrowing interpretation of Title VII’s access and remedies. 2015] employee’s make to ability a prima disallowing case by facie the systems rights use of seniority of employment definitive proof as discrimination. FINAL_S how lower courts determined whatpleading burdens would be placed on employees employers and and what evidence could be offered to prove or rebut a claim of discrimination. But as the Court gradually became more conservative, the pleading and proof standards became consistently more rigid. For instance, the proof requirement established in International Brotherhood of Teamsters dissenting). while the Court’s approach to pleadings and proof may have approach to pleadings and proof maywhile the Court’s have to consider the legislative history of the Act, which did not the Act, which history of the legislative to consider to legalize intended that Congress the conclusion “support systemsseniority discrimination.” that perpetuate from an employee having to rebut as pretextual an employer’s nondiscriminatory justification for its actions to requiring an employeeto make a showing definitive discriminatory of intent. C Y 37692-stj_89-2-3 Sheet No. 149 Side A 04/08/2016 13:04:55 A 04/08/2016 149 Side Sheet No. 37692-stj_89-2-3 37692-stj_89-2-3 Sheet No. 149 Side B 04/08/2016 13:04:55

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117 , [Vol. 89:671 McDonnell Douglas The Court reaffirmed its A black female A black employeeof 125 118 stating that “[o]ur decisions have not stating that “[o]ur decisions have The Court held that “disparate impact The Court held that “disparate 122 123

by holding that “the plaintiff is required to by holding that “the plaintiff pleading standards and rejected the the and rejected standards pleading ST. JOHN’S LAW REVIEW 124

Teamsters The Court reiterated the The Court reiterated the DOC . The employee brought a claim alleging under Title VII, at 982. at 991. 126 at 983. at 990–91. at 989. at 986. at 985–86. Watson Fort Worth v. & Trust Bank 120 COTT 487 U.S. 977 (1988). Id. Id. Id. Id. Id. Id. Id. Id. Id. Id. After the Court determined the proper analysis for subjective In 117 118 119 120 121 122 123 124 125 126 127 promotional the Court then had to establish the practices, appropriate evidentiary standard. analysis may in principle be applied to subjective as well as to objective practices.” three-prong proof and pleading test to analyze Title VII claimsthree-prong proof and pleading to disparate impactand extended its application cases. 686 Marshall Justice changed, for the to advocate continued McDonnell Douglas Court-compelled of proof. burden heightened FINAL_S a claim applied to as they standards with evidentiary of VII. impactdisparate under Title However, “[t]he ultimate the Court held that burden of The bank “had not developed precise and formal not developed precise and The bank “had criteria for for” promotions,evaluating candidates “on the but instead relied subjective judgment who were acquainted supervisors of [white] with with the candidates and be the nature of the jobs to filled.” to determineThe Court had analyze a disparate impact how to claim the employer in which in used subjective criteria determining promotions, addressed the question whether disparate impactaddressed the question whether analysis may criteria are used to makebe applied to cases in which subjective employment decisions.” decision in that the bank’s promotionthat the bank’s policies were discriminatory. racially prove that the defendant had a discriminatoryprove that the defendant intent or motive.” Fort Worth a supervisory was denied a promotion to Bank white applicants. separate occasions in favor of position on four 37692-stj_89-2-3 Sheet No. 149 Side B 04/08/2016 13:04:55 B 04/08/2016 149 Side Sheet No. 37692-stj_89-2-3 37692-stj_89-2-3 Sheet No. 150 Side A 04/08/2016 13:04:55 AM AM

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The 136 3/24/16 the Court 687 135 , e, inoffensive-sounding

concurring opinion, agreeing concurring opinion, 131 The Court’s ruling to allocate 133 This proof requirement allowed 129 By “[a]llowing an employer to escape 132 The Court justified requiring a higher The Court 130 to the employershow that the employment to

note 3, at 464. ” 134 INFLUENCE OF JUSTICE MARSHALL OF JUSTICE INFLUENCE

supra The Court acknowledged that by allowing the allowing the that by Court acknowledged The proof 128 DOC . Wards Cove Packing Co. v. Atonio at 986 (internal quotation marks omitted). at 986 (internal quotation marks omitted). at 994. at 997–98. at 993. at 1009 (Blackmun, J., concurring) at 1001. COTT Id. Id. Id. Id. Id. Id. Id. 490 U.S. 642 (1989). Belton, Justice Marshall a joined in In 128 129 130 131 132 133 134 135 136 M K Court’s holding “made it more difficult for plaintiffs to establish a prima case of disparate impact facie discrimination by adopting a more standard for the use of statistical evidence and rigorous employertests for employment subjective to use practices, employees a much faced that the to establish higher burden employment were practices discriminatory, intentionally as preferential. opposed to just the ultimate of proof to the employee burden was contradicted by earlier rulings, and Justice Marshall reiterated that an employee “who successfully establishes [a] prima facie case shifts the burden of necessity and is not intentionally practice is justified by business discriminatory. liability simply by articulating vagu subjective criteria would disserve Title VII’s goal of eradicating discrimination in employment.” with the plurality’s judgment,with the plurality’s but not with the allocation of The concurring Justices warnedburdens of proof. that “to lessen the employer’s burden of justifying an employment practice that produces a disparate impact simplypractice relies because the upon subjective assessments” was inconsistent with the principles of Title VII. 2015] intentionally the defendant that of fact the trier persuading discriminated plaintiff remains against the at all times with the plaintiff.” FINAL_S burden for employees, that the shifting burden holding intent Congress’s sufficiently safeguarded evidentiary standards of Title VII. to ensure the strength “completely dismantled the disparate impact theory.” employers in meeting to have a lower burden business the necessity criteria. C Y 37692-stj_89-2-3 Sheet No. 150 Side A 04/08/2016 13:04:55 A 04/08/2016 150 Side Sheet No. 37692-stj_89-2-3 37692-stj_89-2-3 Sheet No. 150 Side B 04/08/2016 13:04:55

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Wards decision 3/24/16 [Vol. 89:671 Wards Cove The The By drastically shifting the 145 143 ” and found this disturbing The Court ruled that in a Court ruled that The “correctly reflected the intent of “correctly reflected the intent 137 Griggs The dissent contended that the The dissent contended that 144 Griggs The Court found that a greater degree of The Court found that a greater 142 ST. JOHN’S LAW REVIEW The Court held that the The Court burden in “plaintiff’s 138 490 U.S. at 656–57.

DOC . at 466. at 656. at 657. at 656 (internal quotation mark omitted). at 659. at 670 (Stevens, J., dissenting). . at 672. COTT all but made a claim under Title VII impossible for an Id. Wards Cove Id. Id. Id. Id. Id. Id. Id Justice Marshall joined in a dissent, which ardently opposed 137 138 139 140 141 142 143 144 145 the Congress that enacted Title VII.” the Congress that enacted Title because the decision in majority’s statutory construction that decision rejected “the developed in the wake of burden of proof to the plaintiff, the majorityburden of proof to the plaintiff, opinion in Cove employee prove. to the majority’s requirement that an employee prove an employer’s discriminatory intent. According issue was to the dissent, the whether an employment effect practice has a significant, adverse “regardless of the cause or on an identifiable class of workers, motive for the practice.” establishing a prima facie case goes beyond the need to show that the need to show beyond a primaestablishing facie case goes disparities in the employer’sthere are statistical work force.” 688 meetprove they to defendants of the burden easing substantially test.” necessity the business FINAL_S Instead, the Court required an employeeInstead, the Court to show that the employment a specific or particular “application of practice . . . created the Moreover,“for isolating the Court made the plaintiff responsible disparate impact the specific employmentand identifying practices that are under disparities.” for any observed statistical allegedly responsible attack.” not enough, the plaintiff’s burden of proof was As if raising the the employer’sCourt lowered proof requirements, holding that had “no requirementthe business-necessity defense that the or ‘indispensable’ to the challenged practice be ‘essential’ employer’s business.” disparate impactdisparate claim brought Title VII, an pursuant to employee more have to show would a racial imbalance than just in the workforce. scrutiny “would be almost impossible for most employers to meet, and would result in a host of evils.” 37692-stj_89-2-3 Sheet No. 150 Side B 04/08/2016 13:04:55 B 04/08/2016 150 Side Sheet No. 37692-stj_89-2-3 37692-stj_89-2-3 Sheet No. 151 Side A 04/08/2016 13:04:55 AM AM

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Thus, Thus, 147 3/24/16 The trial Wards Cove 151 As such, the 689 148

149 Writing for the

153 154 . 1, 36. (1989). joined the plurality in joined the plurality EV R

hich] underestimate[d]the probative Dead? Reflecting (Fearfully) on U. There, the plaintiff proved that she There, the plaintiff proved

. T 150 S . The Court affirmed the lower court’s

The dissent concluded that the majority concluded The dissent Griggs . 152 146 LA Is INFLUENCE OF JUSTICE MARSHALL OF JUSTICE INFLUENCE

DOC . at 663. (internal quotation marks omitted). at 251. at 236–37. at 252–53. COTT Id. Id. Mack A. Player, Id. 490 U.S. 228 (1989). Id. Id. Id. Id. Finally, Justice MarshallFinally, Justice The courts below held that an employer . . . must prove by clear . . . The courts below held that an employer would have made the same and convincing evidence that it decision in the absence of discrimination. We persuaded are employerthat the better rule is that the must make this evidence. showing by a preponderance of the 146 147 148 149 150 151 152 153 154 M K Packing Co. v. Atonio, 17 F plurality, Justice Brennan explained: plurality, Justice Brennan explained: value of evidence of a racially stratified work racially stratified evidence of a value of force.” “[t]urn[ed] a blind eye to the meaning a blind eye “[t]urn[ed] VII, of Title and purpose the majority’s[and] a reject[ed] perfunctorily opinion rule of lawlongstanding [w finding of discrimination but disagreed with the standard of proof the employer.the lower courts applied to Court’s analysis could arguably be as follows: “Defendant’s “Defendant’s arguably be as follows: analysis could Court’s Plaintiff’s standing alone could be accepted. validation data somechallenge raises of as to the probative value serious doubts are know whose statistics since I don’t data. But defendant’s more of plaintiff carries the burden accurate, and since persuading me, defendant wins.” he didn’t, and court found that remarks pertaining to the plaintiff, which were as partner in the accounting firm,relied on to deny her a position “stemmed from an impermissiblyof the proper cabined view behavior of women.” Waterhouse v. Hopkins

2015] amountedeffectively interpretation a consistent of to “a rejection statute.” of a federal FINAL_S where a plaintiff mightwhere a plaintiff deference in a factual have been granted now had the upper hand. analysis, the defendant had been discriminated against on the basis of sex. C Y 37692-stj_89-2-3 Sheet No. 151 Side A 04/08/2016 13:04:55 A 04/08/2016 151 Side Sheet No. 37692-stj_89-2-3 37692-stj_89-2-3 Sheet No. 151 Side B 04/08/2016 13:04:55

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L. 3/24/16 et seq.); and other

, 490 U.S. 157 , ENDER , 491 U.S. 164, 171 G

J. AND

Griggs v. Duke 155 [Vol. 89:671 UKE 1991 U.S.C. 2000e Gender Nonconformity and the Wards Cove Packing Co. v. INDICATION CT OF V A S ’ Congress enacted the Civil Rights Congress enacted IGHTS 158 R , 490 U.S. 755, 761–62 (1989) (permitting white ARSHALL Joel Wm. Friedman, M Patterson v. McLean Credit Union IVIL See Price Waterhouse v. Hopkins C Wards v. Atonio Cove Packing Co. ST. JOHN’S LAW REVIEW HE Price Waterhouse v. Hopkins, 14 D USTICE J Martin v. Wilks IV. T , 401 U.S. 424 (1971), and in the other Supreme Court , 401 U.S. 424 (1971), and in the other

DOC portions of . Congress for the Act: explicitly stated its intentions at 253. 156 , COTT 159 Congress also reversed 2(2), 105 Stat. 1071, 1071 § Pub. L. No. 102-166, Civil Rights Act of 1991, Id. 490 U.S. 642 (1989). While Congress upheld the preponderance of evidence burden of proof, it To counter the Court’s decision in To counter the (1) to provide appropriate remedies for intentional to provide appropriate Act are—The purposes of this (1) discrimination unlawful harassment and in the workplace; necessity” and “job to codify the concepts of “business (2) Court in related” enunciated by the Supreme Power Co. decisions prior to 642 (1989); to confirm statutory authority and provide statutory (3) disparate impactguidelines for the adjudication of suits under of 1964 (42 title VII of the Civil Rights Act and 158 159 155 156 157 (codified as amended sections of 42 U.S.C.). in scattered Unfulfilled Promise of Atonio employment discrimination cases in which Justice Marshall took issue with the majority view, 690 Marshall as Justice Just took the of the burden that position in making the plaintiff proof for a prima should be facie case same he took the reasonable, on employers, position rejecting the proof. standard of and convincing higher clear FINAL_S 205, 211–14 (2007). Act of 1991, completely these the precedent set by invalidating cases. firefighters to challenge a consent decree in a case to which they had not been firefighters to challenge a consent decree in a case to which they had not parties). rejected that portion of the decision that created the “same decision” defense. This rejected that portion of the decision that it would have reached the same decision defense allowed an employer to prove that any discriminatory considerations. But this regarding the employee’s status absent to limit the remedy, it also operated as a defense not only allowed an employer complete defense to liability. of (1989) (holding that an employee could not sue for damages under section 1981 racial the Civil Rights Act of 1866 in relation to conditions of employment caused by harassment), and 37692-stj_89-2-3 Sheet No. 151 Side B 04/08/2016 13:04:55 B 04/08/2016 151 Side Sheet No. 37692-stj_89-2-3 37692-stj_89-2-3 Sheet No. 152 Side A 04/08/2016 13:04:55

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. EMP IL 3/24/16 160 , 6 T 691 , 141 M By doing so, Congress By doing so,

Of most significance, Title 163 165 The Act expanded civil rights The Act expanded 161 in restoring a plaintiff’s power in a plaintiff’s in restoring The initial decisions issued by the The initial decisions issued ONCLUSION C 166 This left the Supreme Court to define 164 The Civil Rights Act of 1991: From Conciliation to Title VII as a Displacement of Conflict Griggs note 1, at 427–28. 11–12 (1996).

and holds an employer and holds an a claim liable for under INFLUENCE OF JUSTICE MARSHALL OF JUSTICE INFLUENCE 1,

. 162 supra

EV DOC R .

(internal quotation marks omitted). § 3. § 105. at 4–5. L.

. COTT Id. Id. Charles B. Hernicz, Id. Turner, Elizabeth Chambliss, Id. TS As written, of combating Title VII set forth the lofty goal R (4) to respond to recent decisions of the Supreme recent decisions to to respond by Court (4) to statutes in order civil rights the scope of relevant expanding to victims protection provide adequate of discrimination.

160 161 162 163 164 165 166 . M K IV Litigation—How Congress Delegates Lawmaking to the Courts various forms of discrimination the workplace in but gave little the requirementsguidance to the courts on for effective enforcement the Act. of VII did not give statutory guidance on how to plead and prove a VII did not give statutory guidance when an employerviolation; nor did it address specifically would be liable under Title VII. statutes and allowed for greater access to the courts, which for greater access to statutes and allowed Justice Marshall for under Title VII cases. strongly advocated Justice Marshall’s burden allocated to the employer view on the wasAct “imposes into the Act. The also incorporated on the employer for business necessity and job the burden of persuasion relatedness” Court broadened the scope of Title VII and attemptedCourt broadened the scope to eliminate ambiguity the making it easier for an in the statute, employee seek redress under Title VII. to Title VII if that employerTitle VII if that “fails to demonstrate the that in question and is job related for the position challenged practice consistent withbusiness necessity.” 31 (1993). C 2015] drewCongress from FINAL_S disparate impactdisparate by allowing cases plaintiff to allege the discriminatory impact withoutTitle VII claim a basis for a as a requisite showing of intent. affirmed Justice Marshall’s Title VII interpretation of regarding both parties. burdens of proof and pleading for what constituted discrimination that violated Title VII and determine the scope of the statute. C Y 37692-stj_89-2-3 Sheet No. 152 Side A 04/08/2016 13:04:55 A 04/08/2016 152 Side Sheet No. 37692-stj_89-2-3 37692-stj_89-2-3 Sheet No. 152 Side B 04/08/2016 13:04:55 M K AM AM

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168 at 230–31. , ST. JOHN’S LAW REVIEW note 42 supra

DOC . COTT Civil Rights Act of 1991, Pub. L. No. 102–166, § 3(4), 105 Stat. 1071, 1071. Garrow, The early opinions of the Court also aligned with with also aligned Court of the early opinions The Justice Justice MarshallCongress vindicated early Court and the

167 168 Marshall’s theory of social supported the and jurisprudence As the to the courts. equal access by broadening engineering Court became more increasingly a number it issued conservative, makingof opinions more Title VII violations to prove. difficult to courts becameAs access more Marshall restricted, Justice on the Court shifting towardsfound his position concurrence and Marshalldissent. Justice wrote Title VII wasto ensure that intended. enforced as Congress of 1991 to combat the Civil Rights Act decisions by passing entrenched racial discriminationpervasive and in employment statutes in order scope of relevant civil rights “by expanding the protection to victimsto provide adequate of discrimination.” 692 FINAL_S is fitting that Justice Marshallis fitting that Justice joined the majority or concurred reasonable proof and pleading in those cases that established standards that made seeking judicial relief less formidable. In doing so, Justice Marshall and his colleagues expanded Title VII so that modern engineers have the necessary tools to bring social discrimination cases and the ability to use established precedent to construct a more equal workplace. 37692-stj_89-2-3 Sheet No. 152 Side B 04/08/2016 13:04:55 B 04/08/2016 152 Side Sheet No. 37692-stj_89-2-3