Patterson v. McLean Credit Union Brief Amicus Curiae in Support of Respondent

    El  c f 5

No. 87-107

In  T he

l^ujjratt? (ftmrrt o f tlp> States
October T e r m , 1987

B renda  P atterson ,
Petitioner,

v.

M cLe an  Credit U n io n ,
Respondent.

On Writ of Certiorari to the United States 
Court of Appeals for the Fourth Circuit

BRIEF AMICUS CURIAE FOR THE 
EQUAL EMPLOYMENT ADVISORY COUNCIL 

IN SUPPORT OF THE RESPONDENT

Robert E. W illiams 
Douglas S. McDowell 
Lorence L. Kessler * 

McGuiness & W illiams 
Suite 1200
1015 15th Street, N.W. 
Washington, D.C. 20005 
(202) 789-8600 

Attorneys for Amicus Curiae 
Equal Employment 
Advisory Council

* Counsel of Record

W il s o n  - Ep e s  P r in t in g  C o . ,  In c . -  7 8 9 - 0 0 9 6  - W a s h in g t o n , D .C . 2 0 0 0 1



TABLE OF CONTENTS
Page

TABLE OF AUTHORITIES ..........................................  ii

INTEREST OF THE AMICUS CURIAE ...................  1

STATEMENT OF THE C A SE ......................................  3

SUMMARY OF ARGUMENT...... .................................... 4

ARGUMENT........................................................................... 6

WHEN THE EMPLOYER IN A PROMOTION 
DISCRIMINATION CASE HAS PRESENTED 
EVIDENCE THAT IT JUDGED THE PERSON 
PROMOTED TO BE BETTER QUALIFIED 
THAN THE PLAINTIFF, THE PLAINTIFF’S 
BURDEN OF PROVING INTENTIONAL DIS­
CRIMINATION CANNOT BE SATISFIED SIM­
PLY BY A SHOWING THAT HER QUALIFICA­
TIONS MAY HAVE BEEN EQUAL TO THOSE
OF THE PERSON PROMOTED..............................  6

A. This Court Has Recognized That An Employer
Has The Discretion To Choose Among Equally 
Qualified Candidates .........   6

B. The Court Should Reject Petitioner’s Attempt to
Characterize this Claim of Individual Disparate 
Treatment as a Pattern and Practice Case.........  15

CONCLUSION....................................................................  16



11

TABLE OF AUTHORITIES
Cases: Page

Furnco Construction Co. v. Waters, 438 U.S. 567
(1978) .............. ....... ..........................................2,8,10,11

Hawkins v. Anheuser Busch, Inc., 697 F.2d 810
(8th Cir. 1983).................    14

Inti. Bro. of Teamsters v. United States, 431 U.S.
324 (1977) .............................................................3,10,15

Johnson v. Transportation Agency, (No. 85-1129)
107 S.Ct. 1442 (1987) .....................     7

LaGrant v. Gulf + Western Mfg. Co., 748 F.2d 1087
(6th Cir. 1984)........... ......................................... 13,14

McDonnell Douglas v. Green, 411 U.S. 792 (1973) ..passim 
Sahadi v. Reynolds Chemical, 636 F.2d 1116 (6th

Cir. 1980) ................................. ............................... 14
Steelworkers v. Weber, 443 U.S. 193 (1979) .........  8
Texas Dept, of Community Affairs v. Burdine, 450

U.S. 248 (1981) ....... ..... .........................................passim
Trans World Airlines, Inc. v. Thurston, 469 U.S.

I l l  (1985) ............................................................. 9,15
United States Postal Service Board of Governors 

v. Aikens, 460 U.S. 711 (1983) ___ ____________ passim

Statutes:
Section 1981, Civil Rights Act of 1866, 42 U.S.C.

§ 1981 ..................   2
Title VII, Civil Rights Act of 1964, as amended,

42 U.S.C. § 2000e................... ............................... passim



In  T he

§ i p ' i n p  Q J m t r t  u f  tljv l l h t i f t i i  BMvx
October T e r m , 1987

87-107

B renda  Patterson ,
Petitioner,

v.

M cLe an  Credit U n io n ,
Respondent.

On Writ of Certiorari to the United States 
Court of Appeals for the Fourth Circuit

BRIEF AMICUS CURIAE FOR THE 
EQUAL EMPLOYMENT ADVISORY COUNCIL 

IN SUPPORT OF THE RESPONDENT

The Equal Employment Advisory Council, with 
the written consent of the parties, respectfully sub­
mits this brief as Amicus Curiae in support of the 
Respondent. The letters of consent have been filed 
with the Clerk of the Court.

INTEREST OF THE AMICUS CURIAE

The Equal Employment Advisory Council is a vol­
untary nonprofit association organized to promote 
the common interest of employers and the general 
public in sound government policies, procedures and



2

requirements pertaining to nondiscriminatory em­
ployment practices. Its membership comprises a 
broad segment of the employer community in the 
United States, including both individual employers 
and trade and industry associations. Its governing 
body is a board of directors composed primarily of 
experts and specialists in the field of equal employ­
ment opportunity whose combined experience gives 
the Council a unique depth of understanding of the 
practical and legal considerations relevant to the 
proper interpretation and application of EEO policies 
and requirements. The members of the Council are 
committed to the principles of nondiscrimination and 
equal employment opportunity.

As employers, the Council’s members are subject to 
the provisions of Title VII of the Civil Rights Act of 
1964, as amended (42 U.S.C. §§ 2000e et seq.), as 
well as the Civil Rights Act of 1866 (Section 1981). 
As such, they have a direct interest in one of the 
issues presented for the Court’s consideration: that 
is, whether in proving a case of intentional discrimi­
nation in the denial of a promotion, a plaintiff must 
demonstrate that she was better qualified than the 
individual (s) selected.1

Because of its interest in the issues related to the 
standard of proof in employment discrimination 
cases, the Council has filed briefs amicus curiae in 
this Court in United States Postal Service Board of 
Governors v. Aikens, 460 U.S. 711 (1983); Texas 
Dept, of Community Affairs v. Burdine, 450 U.S. 248 
(1981); Furnco Construction Co. v. Waters, 438

1 The Court also granted certiorari on the question of 
whether racial harassment is actionable under Section 1981. 
This brief is limited to the issue of promotion discrimination.



3

U.S. 567 (1978); and Inti. Bro. of Teamsters v. 
United States, 431 U.S. 324 (1977).

STATEMENT OF THE CASE

The Petitioner, Brenda Patterson, is a former em­
ployee of the Respondent, McLean Credit Union. Ms. 
Patterson, a black female, worked for the credit 
union as a teller and file coordinator from May 1972 
until July 1982 when she was laid off. In 1984, she 
initiated this action under 42 U.S.C. § 1981 alleging 
that she had been a victim of race discrimination by 
the employer. In particular, she alleges that she was 
subjected to racially-motivated harassment and that 
she was denied a promotion because of her race.2

The Petitioner’s allegation of promotion discrimi­
nation challenges the employer’s decision in 1982 to 
give the job title “Account Intermediate” to Susan 
Williamson, a white employee. Williamson had pre­
viously held the job title of “Account Junior.”  Peti­
tioner alleges that this was a promotion, and that 
Williamson was less qualified than Petitioner for the 
job. At trial, the employer argued that this trans­
action was simply a change in Williamson’s job title 
with no change in her responsibilities, functions or 
supervision. The employer presented evidence to 
show that Williamson was more qualified than Peti­
tioner to do each job function required for the ac­
counting position and that Williamson’s annual per­
formance evaluations had exceeded the Petitioner’s.

2 The district court granted a directed verdict on the claim 
of racial harassment.



4

The claim of promotion discrimination was sub­
mitted to the jury, which returned a verdict for the 
employer. On appeal, the Petitioner challenged the 
district court’s instruction to the jury because it in­
dicated that for Petitioner to prevail, she had to show 
that she was more qualified than Williamson. The 
Court of Appeals ruled that:

once an employer has advanced superior qualifi­
cation as a legitimate nondiscriminatory reason 
for favoring another employee over the claim­
ant, the burden of persuasion is upon the claim­
ant to satisfy the trier of fact that the employ­
er’s proffered reason is pretextual, that race dis­
crimination is the real reason.

That was the situation here, and the district 
court therefore properly instructed the jury that 
the burden was upon the claimant to prove her 
superior qualifications by way of proving race 
discrimination as the effective cause of the de­
nial to her of “promotion.” . . . This simply re­
flects the principle established in Title VII cases 
that an employer may, without illegally discrimi­
nating choose among equally qualified employ­
ees notwithstanding some may be members of a 
protected minority.

Patterson v. McLean Credit Union, 805 F.2d 1143, 
1147 (citations omitted). The Court of Appeals thus 
concluded that the trial court’s instructions were 
proper.

SUMMARY OF ARGUMENT

The Petitioner takes issue with the trial court’s 
instructions to the jury on the grounds, inter alia, 
that they were framed so as to require her to prove 
not merely that she was as well qualified for promo­



5

tion as the person selected, but that she was in fact 
better qualified. A mere showing that the Petition­
er’s qualifications were equal to those of the individ­
ual promoted, however, would not warrant a conclu­
sion that the employer had based its decision on dis­
crimination, rather than on its assessment of the in­
dividuals’ relative qualifications.

It is well settled that the plaintiff in an individual 
promotion discrimination case bears the ultimate bur­
den of proving intentional discrimination. The law 
set forth by this Court further provides that an em­
ployer has discretion in choosing among equally qual­
ified candidates. Therefore, in a case alleging promo­
tion discrimination, where the employer has re­
sponded to the plaintiff’s evidence by showing that it 
promoted an individual it judged to be better quali­
fied, the plaintiff cannot prevail simply by present­
ing evidence to show that she may have been as quali­
fied as the person who received the promotion. 
Rather, unless it appears at the conclusion of all the 
evidence that the plaintiff was so clearly better suited 
for the position than the person selected that the em­
ployer, in the exercise of its discretion to judge their 
respective qualifications, could not reasonably have 
concluded otherwise, the plaintiff has failed to meet 
her burden of proving that the employer’s explana­
tion for its decision was pretextual.



6

ARGUMENT

WHEN THE EMPLOYER IN A PROMOTION DIS­
CRIMINATION CASE HAS PRESENTED EVIDENCE  
THAT IT JUDGED THE PERSON PROMOTED TO BE 
BETTER QUALIFIED THAN THE PLAINTIFF, THE 
PLAINTIFF’S BURDEN OF PROVING INTENTIONAL  
DISCRIMINATION CANNOT BE SATISFIED SIMPLY  
BY A SHOWING THAT HER QUALIFICATIONS M AY  
HAVE BEEN EQUAL TO THOSE OF THE PERSON 
PROMOTED.

A. This Court Has Recognized That An Employer Has 
The Discretion To Choose Among Equally Qualified 
Candidates.

This Court has been very clear in ruling that an 
employer has the right to use its discretion in choos­
ing among equally qualified candidates, provided that 
the choice is not based on illegal criteria. Texas De­
partment of Community Affairs v. Bur dine, 450 U.S. 
248, 259 (1981). Equally well established by this 
Court is the principle that the burden of proving in­
tentional discrimination rests upon the plaintiff. 
Burdine, 450 U.S. at 254.3 To the extent that the

3 The burden of proof issue before the Court in this case, 
as viewed by the Amicus, primarily concerns the ultimate 
burden imposed on a plaintiff in a case alleging intentional 
discrimination. In past decisions, this Court has been careful 
to distinguish between that burden of proof on the ultimate 
question and the rules governing “the basic allocation of 
burdens and order of presentation of proof” in discrimination 
cases. Burdine, 450 U.S. at 252. As the Court observed in 
United States Postal Service Board of Governors v. Aikens, 
460 U.S. 711 (1983), this latter set of legal rules notwith­
standing, courts should not “ treat discrimination differently 
from other ultimate questions of fact.” 460 U.S. at 716. In 
discrimination cases brought under either Title VII or Section 
1981, the “ ultimate burden of persuading the trier of fact that 
the defendant intentionally discriminated against the plaintiff



7

arguments made by Petitioner in this case seek to 
shift that burden or to restrict an employer’s legiti­
mate discretion in selecting individuals for promo­
tion, the Court should reject those arguments as be­
ing impractical and unsupported by the law.

This case involves an individual claim alleging dis­
crimination in the denial of a promotion. In response 
to the evidence presented by the plaintiff, the em­
ployer offered evidence to show that it judged the per­
son who received the promotion to be better qualified 
than the plaintiff. Under the standard for presenta­
tion of proof set forth in McDonnell Douglas Corp. v. 
Green, 411 U.S. 792 (1973), the next step was for 
the plaintiff to offer any evidence she had to demon­
strate that the legitimate nondiscriminatory reason 
articulated by the employer was merely a pretext for 
intentional discrimination. This evidence could take 
the form of a showing by the plaintiff that she was 
in fact, more qualified than Williamson, the person 
selected for the promotion. A mere showing that her 
qualifications were equal to Williamson’s, however, 
would not suffice to meet her ultimate burden. 
Rather, only if the jury were convinced that the Pe­
titioner was clearly better qualified than the person 
who was promoted would it have been warranted in 
concluding that the employer’s explanation must not 
have been sincere.

In Johnson v. Transportation Agency, 107 S.Ct. 
1442, 1457 n.17 (1987), this Court observed that dif­
ferences in qualifications between individual candi­
dates for promotion are sometimes minimal and may

remains at all times with the plaintiff.”  Burdine, 450 U.S. 
at 253.



8

depend on subjective determinations as to which can­
didate is “best qualified.” 4 Where a single opportu­
nity for promotion is involved, logic does not sug­
gest, and the law does not require, that an inference 
of discrimination be drawn from a mere showing 
that the plaintiff’s qualifications were arguably com­
parable to those of the person promoted. Rather, to 
support a finding that the employer’s proffered ex-

4 To permit the plaintiff to prevail simply on the basis of a 
showing that she is as qualified as the person selected for the 
promotion would be essentially the same flawed reasoning 
which this Court corrected in Texas Department of Com­
munity Affairs v. Burdine, 450 U.S. 248 (1981). As the Court 
there stated:

The Court of Appeals also erred in requiring the de­
fendant to prove by objective evidence that the person 
hired or promoted was more qualified than the plaintiff. 
McDonnell Douglas teaches that it is the plaintiff’s task 
to demonstrate that similarly situated employees were 
not treated equally. 411 U.S. at 804. The Court of 
Appeals’ rule would require the employer to show that 
the plaintiff’s objective qualifications were inferior to 
those of the person selected. If it cannot, a court would 
in effect, conclude that it has discriminated.

The court’s procedural rule harbors a substantive 
error. Title VII prohibits all discrimination in employ­
ment based upon race, sex, and national origin. . . . Title 
VII, however, does not demand that an employer give 
preferential treatment to minorities or women. 42 U.S.C. 
§ 2000e-2(j). See Steelworkers v. Weber, 443 U.S. 193, 
205-206 (1979). The statute was not intended to “ di­
minish traditional management prerogatives.” Id., at 
207. It does not require the employer to restructure his 
employment practices to maximize the number of minor­
ities and women hired. Furnco Construction Corp. v. 
Waters, 438 U.S. 567, 577-78 (1978).

450 U.S. at 258-59.



9

planation for its decision was pretextual, the evidence 
must compel the conclusion that the employer, in 
the exercise of its discretionary authority to evaluate 
the credentials of candidates, could not reasonably 
have concluded that the person selected was in fact 
better suited for the position than the plaintiff. In 
the ordinary case, this will require a showing that 
the plaintiff’s qualifications are clearly superior to 
those of the person chosen.

Petitioner’s arguments stress that there may be 
situations in which a plaintiff is unable to prove that 
she is more qualified than the person who was pro­
moted, but nonetheless may be able to produce evi­
dence of an overt policy of discrimination. As an 
example, Petitioner cites the airline policy at issue 
in Trans World Airlines, Inc. v. Thurston, 469 U.S. 
I l l  (1985), which specifically differentiated between 
airline captains on the basis of their age. There is no 
disagreement with the proposition that an overt pol­
icy of disparate treatment can constitute direct evi­
dence of illegal discrimination. But the Petitioner’s 
arguments in this regard miss a critical point. That 
is, in most cases involving allegations of discrimina­
tion in promotion there is no direct evidence of an 
overt discriminatory intent, but there is an assess­
ment of the relative qualifications of the person who 
was promoted and a person who was not.

Indeed, the McDonnell Douglas formula is useful 
precisely because so often there is no direct evidence 
of discriminatory intent.5 In explaining how that 
formula works, this Court has observed that one of

8 See Aikens, 460 U.S. at 716.



10

the most frequent reasons for legitimately rejecting 
a person for a job is a relative lack of qualifications.6

This point must not be overlooked in ruling on the 
issue before the Court in this case. The essence of 
the McDonnell Douglas approach is that an inference 
of intentional discrimination may be warranted 
where the most common legitimate reason why an 
individual may be denied a particular position are 
lacking.

A prima facie case under McDonnell Douglas 
raises an inference of discrimination only be­
cause we presume these acts, if otherwise unex­
plained, are more likely than not based on the 
consideration of impermissible factors. . . . Thus, 
when all legitimate reasons for rejecting an ap­
plicant have been eliminated as possible reasons 
for the employer’s actions, it is more likely than 
not the employer, who we generally assume acts

6 In International Brotherhood of Teamsters v. United 
States, 431 U.S. 324 (1977), this Court recognized that a 
relative lack of qualifications is one of the two most common 
legitimate reasons for refusing one candidate and selecting 
another:

The McDonnell Douglas formula . . . does demand that 
the alleged discriminatee demonstrate at least that his 
rejection did not result from the two most common 
legitimate reasons on which an employer might rely to 
reject a job applicant: an absolute or relative lack of 
qualifications or the absence of a vacancy in the job 
sought. Elimination of these reasons for the refusal to 
hire is sufficient, absent other explanation, to create an 
inference that the decision was a discriminatory one.
431 U.S. at 358 n.44. See also, Burdine, 450 U.S. at 254.



11

only with some reason, based his decision on an 
impermissible consideration such as race.

Furnco Construction Corp. v. Waters, 438 U.S. 567, 
577 (1978).

To be sure, an individual plaintiff is not limited to 
following the McDonnell Douglas formula, and that 
formula was never intended to be “ rigid, mechanized, 
or ritualistic.”  7 8 But an individual who tries to prove 
intentional discrimination without addressing the 
most common legitimate reasons for nonselection 
(that is, the issues of whether there was a vacancy 
and whether the person chosen had superior qualifi­
cations) has taken on a very difficult burden. In 
such a situation, the plaintiff’s effort is not pushed 
along by the strong force of the logic which drives 
the McDonnell Douglas formula.

In the instant case, the focus is not on the evi­
dence needed to demonstrate a prima facie case (al­
though much of Petitioner’s argument is framed in 
those terms). Rather, the key issue here is what 
must be shown by a plaintiff after the employer has 
produced evidence that it judged the qualifications of 
the person selected to be superior to the plaintiff’s. 
The Court has observed that at this stage, the pre­
sumption created by the McDonnell Douglas formula 
“ drops from the case” s and “ the factual inquiry pro­
ceeds to a new level of specificity.” 9

In their arguments to this Court, however, Peti­
tioner and the Department of Justice find fault with

7 Furnco, 438 U.S. at 577.
8 United States Postal Service Board of Governors v. Aikens, 

460 U.S. 711, 715 (1983) ; Burdine, 450 U.S. at 255 n.10.
9 Burdine, 450 U.S. at 255; Aikens, 460 U.S. at 715.



12

a jury instruction which addresses the factual in­
quiry on this “new level of specificity,”  rather than 
the general theories available to prove a prima facie 
case. They seem to suggest that the court’s instruc­
tions to the jury were improper because they were 
related to the specific factual dispute raised by the 
evidence in the case. They argue that a proper in­
struction would have advised the jury of all the vari­
ous alternate theories of discrimination, without re­
gard to the available evidence. The flaw in Petition­
er’s approach is not unlike the flaw pointed out by this 
Court in Athens. In that case, the parties and the 
Court of Appeals continued to focus on the issue of 
whether the plaintiff had proven a prima facie case 
even after the case had been fully tried on the merits. 
As this Court observed;

by framing the issue in these terms, they have 
unnecessarily evaded the ultimate question of 
discrimination vel non.

460 U.S. at 714. Similarly, the approach urged here 
by the Petitioner tends to evade rather than con­
front the ultimate question of intentional discrimina­
tion— i.e. the very question which the jury had to 
decide.

The evidence previously introduced by the plaintiff 
and by the defendant remains in the case, to be con­
sidered by the trier of fact on the ultimate issue of 
whether the plaintiff was a victim of intentional dis­
crimination. Thus, while a plaintiff may have a 
variety of options for presenting evidence of a prima 
facie case, a plaintiff cannot ignore the issue of rela­
tive qualification once it has been raised in a promo­
tion discrimination case. The ultimate burden of 
convincing a trier of fact that the employer inten­



13

tionally discriminated is on the plaintiff 10 and a trier 
of fact is entitled to find against a plaintiff who fails 
to overcome the employer’s evidence that it selected 
an individual it judged to be better qualified than 
the plaintiff.

The arguments made by the Petitioner and the 
Department of Justice in this case focus on the unu­
sual rather than the typical issues raised in a claim 
of promotion discrimination. Any guidance provided 
by the Court here with respect to claims of promo­
tion discrimination should recognize that most claims 
of promotion discrimination hinge on an assessment 
of relative qualifications. The Petitioner’s focus on 
direct evidence must not serve to confuse the already 
established principle that a plaintiff whose evidence 
shows only that she is as qualified as the person who 
was promoted has not proven the existence of inten­
tional discrimination. Moreover, even if the plaintiff 
offers evidence that the employer may have misjudged 
the relative qualifications of the individuals, that evi­
dence alone does not create liability under Title VII 
or Section 1981.11

In examining the Petitioner’s discussion about how 
to assess relative qualifications, it should be noted

10 Burdine, 450 U.S. at 254. For an indication of the type 
of evidence which could support a finding of discrimination 
in a case which has been fully tried, see the Court’s discussion 
in Aikens, 460 U.S. at 713 n.2.

11 Burdine, 450 U.S. at 259. This same rationale applies 
in the context of claims alleging age discrimination in a 
reduction-in-force. In such cases, courts have recognized that 
a plaintiff who shows simply that he was a competent em­
ployee and that he was laid off when a younger employee was 
retained has not demonstrated discrimination. See, e.g., 
LaGrant v. Gulf + Western Mfg. Co., 748 F.2d 1087, 1090 (6th 
Cir. 1984) (plaintiff’s subjective determination that he was



14

that Petitioner relies heavily upon the decision in 
Hawkins v. Anheuser-Busch, Inc., 697 F.2d 810 (8th 
Cir. 1983), to demonstrate that rulings by other 
courts are in conflict with the decision in this case by 
the Fourth Circuit. Petitioner’s reading of Hawkins, 
however, goes beyond the facts of that case. In fact, 
a careful reading of that decision reveals that the 
court’s conclusion that discrimination occurred was 
supported by a finding that plaintiff was better qual­
ified than the person who got the job and a finding 
that the person who got the job did not possess the 
educational qualifications that the employer professed 
to require. Indeed, it appears the jury instructions 
challenged by Petitioner here would have permitted 
a finding of discrimination in the Hawkins case.12

better qualified than the worker who was retained was not 
enough to make a case of discrimination), and Sahadi v. 
Reynolds Chemical, 636 F.2d 1116, 1118 (6th Cir. 1980) (a 
plaintiff’s showing that he was replaced by an equally quali­
fied employee of a younger age is insufficient to support an 
inference of discrimination).

12 The job at issue in Hawkins was that of material control 
analyst, a position created during a reorganization. This new 
position involved the very same duties of “ inventory plan­
ning, allocation and short-term forecasting” which plaintiff 
had been performing prior to the reorganization. The em­
ployer argued that it had chosen a person with superior 
qualifications. The court found, however, that the plaintiff 
had worked for the employer for seven years satisfactorily 
performing the same duties that were included in the new 
position, while the person chosen instead of the plaintiff had 
a total of only five and one-half years experience doing such 
work for other companies. 697 F.2d at 814. The court’s 
analysis of the evidence indicates that the record supported 
a finding that plaintiff Hawkins was better qualified than the 
person who was selected. The court further found that the 
person who got the job did not in fact possess the type of 
college degree which the employer allegedly required.



15
B. The Court Should Reject Petitioner’s Attempt to Char­

acterize this Claim of Individual Disparate Treatment 
as a Pattern and Practice Case.

A central theme in the arguments made by Peti­
tioner in this Court is that evidence of an overt policy 
of discrimination or evidence of a pattern or prac­
tice of discrimination shifts the burden of proof to 
the employer. The Petitioner purports to find sup­
port for this theory in this Court’s references in 
Burdine, Athens and Thurston to footnote 44 in the 
Teamsters decision.13

Footnote 44 does not support Petitioner’s argu­
ment. Rather, it specifically states that an employer’s 
isolated decision to reject a minority applicant does 
not show that the rejection was racially based. It 
then goes on to explain the functioning of the Mc­
Donnell Douglas test as it is explained above. That 
is, that a relative lack of qualifications is one of the 
two most common legitimate reasons for rejecting an 
applicant, and that by eliminating the most common 
reasons for rejection, a plaintiff may create an in­
ference of discrimination. Contrary to the Petition­
er’s assertion, the footnote does not discuss the sug­
gestion that a plaintiff may shift the burden of proof 
to the employer by offering direct evidence of an 
overt policy of discrimination.

In addition, Petitioner’s arguments overstate the 
usefulness of a “pattern” of discrimination in prov­
ing an instance of individual disparate treatment. 
In McDonnell Douglas, this Court noted the possibil­
ity that the racial composition of an employer’s work 
force may be reflective of exclusionary practices, but 
added:

13 The text of Teamsters footnote 44 is set forth in footnote 
6 of this brief, at page 10, supra.



16

We caution that such general determinations, 
while helpful, may not be in and of themselves 
controlling as to an individual hiring decision, 
particularly in the presence of an otherwise jus­
tifiable reason for refusing to rehire.

411 U.S. at 805 n.19.
In a case involving an individual allegation of pro­

motion discrimination, where the employer has intro­
duced evidence of superior qualifications, the plain­
tiff’s effort to prove pretext cannot succeed if it is not 
responsive to the issue of relative qualifications.

CONCLUSION

The Court of Appeals for the Fourth Circuit cor­
rectly ruled that in a case involving an allegation of 
promotion discrimination, where the employer has 
produced evidence that it relied upon the superior 
qualifications of the person it selected over the plain­
tiff, the plaintiff cannot prevail simply by relying on 
evidence which arguably shows that she may be as 
qualified as the person who received the promotion. 
The judgment of the Court of Appeals should be af­
firmed.

Respectfully submitted,

Robert E. W illiams
Douglas S. McDowell
Lorence L. Kessler * 

McGuiness & W illiams 
Suite 1200
1015 15th Street, N.W. 
Washington, D.C. 20005 
(202) 789-8600

Attorneys for Amicus Curiae 
Equal Employment 
Advisory Council

January 15,1988 * Counsel of Record