Miller v. Johnson Brief of the Appellees

    IN THE

U ij l
i5 g r!■ ■ .f.iL i'

T

OCTOBER TERM, 1972

No. 72-490

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McDo n n e l l  d o u g l a s  c o r p o r a t i o n ,
Petitioner,

v.
PERCY GREEN, 

Respondent.

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

BRIEF FOR PETITIONER

R. H. McROBERTS
v e r y l  l . r i d d l e
THOMAS C. WALSH 

500 North Broadway 
St. Louis, Missouri G3102 

Attorneys for Petitioner

BRYAN, CAVE, McPHEETERS &
McROBERTS 

Of Counsel

St. Louis Lav Printing Co., Inc., 411-15 N. Eighth St. 63101 314-233-4477

£

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INDEX
Page

Opinions below ....................

Jurisdiction . . . .
........................................................................ 2

Questions presented ............... .................*.............. . Jj
Statutes involved

.............................. 3
Statement of the case

............................................... 5
Events leading up to the 1964 layoff ...................  6
The “ Stall-in” and “ Lock-in” ......................

The employment application ................  g
Pre-trial matters

......................................................  10
-the trial .......

.....................................................................  12
The appeal . . .

.......................................................... 13
Summary of argum ent.............  ^

Argument __
.............................................................. 19

• An employer has the right under Title VII to 
refuse to hire a job applicant who has com- 
m ed illegal and unprotected acts against that 

employer even though the applicant is black .. W
A. The fact that respondent is black does not 

ereate a pnma facie case of discrimination 
or relieve respondent of the burden of prov­
ing that petitioner’s refusal to hire him 
violated Title VII .........................................  29

B. There is no requirement under Title VII
hat an employment decision, racially neu­
ral m conception and operation, must be 

based only upon job performance 2o



1 . This case does not fall within the rule of
^nggs v. Duke Power Co. ................... 26

2. Section 706(g) permits any non-discrim-
matory business decision made for any 
reason, whether or not based upon job 
performance . ........................... ................... 28

3. The “ StaH-m” and “ Look-in” justified
pe I toner s refusal to hire respondent .. fiti

IX In civil rights cases alleging discrimination, 
fire employer should be allowed to offer sub- 
jectrye evidence as to his motivation, and the 
we.ght to be accorded to such evidence should 
be determined by the trier of f a c t ................... 34

Conclusion
.............................................................  by

4 Cases Cited

AC.I'rOi\ v. Uannon, 450 F. 2d 1227 (8th Cir. 1971) 6
‘ or V. Board of Education, 342 U.S. 480 (1902) 3t

Achm Life Insurance Company v. Ward, 140 U.S. 76

American Ship Building Co. v. N.L.B.B., 380 U.S.'aOO ^
..................................................  28

Associated Press v. N.LR.B., 301 U.S. 103 (1937) 35

Bank v. Kennedy, 37 Wall. 39 (3872) 35

B  U. s  399(S )  ° f -
Buttny V. Smiley, 2S1 P  Supp. 280 (D . Colo* 19*68) . .32-33

Cameron v. Johnson, 390 U.S. 633 (3968) .........  21
City of Greenwood v. Peacock, 384 U.S. 808 (3966) 21

c° Z aT w T P°: S T " - v - H i " ’ 313 F  S u -
' ...................................................  21

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I ll

/ Commonwealth of Pennsylvania v. Leonard, 315 F. 
Supp. 215 (W.D. Pa. 1970) .......................................  21

Commissioner v. Duberstein, 3G3 U.S. 278 (1960) .. 35, 37
Cox v. Louisiana, 379 U.S. 536 (1965) ........................  21
Crawford v. United States, 212 U.S. 183 (1909) ___ 36

Esteban v. Central Missouri State College, 415 F. 2d 
1077 (8th Cir. 1969) cert, denied 398 U.S. 965 (1970) 33

Fibrcboard v. N.L.R.B., 379 U.S. 203 (1964) .............  30
Fluker v. Alabama State Board of Education, 441 F.

2d 201 (5th Cir. 1971) .............................................. ' 38

Gamer v. Los Angeles Board, 341 U.S. 716 (1951) . . . .  31
Glover v. Daniel, 318 F . Supp. 1070 (N.B.Ga. 1969), 

affirmed 434 F. 2d 617 (5th Cir. 1970) y.................30
Green v. McDonnell Douglas Corporation, 468 F. 2d 

337 (8th Cir. 1972) ............................... 2, 13. 10. 19.08 05
Griggs v. Duke Power Co., 401 U.S. 424

(197J) ............................................. 16,17,23,26,27,28,39
Hill v. Commonwealth of Pennsylvania, 439 F. 2d 1016 

(3d Cir. 1971) cert, denied 404 U.S. 985 (1971) ___ 21

Keen v. Long, 302 F. Supp. 1383 (E.D. Mo. 1969), 
affirmed, 428 F. 2d 876 (8th Cir. 1970), cert, denied 
401 U.S. 923 (1971) .....................................................  6

Moore v. Board of Education of Chidester School Dis­
trict, 448 F. 2d 709 (8th Cir. 1971) ............................  33

National Packing Co. v. N.L.R.B., 352 F. 2d 4S2 (10th 
Cir. 1965) ..............................................  32

N.L.R.B. v. Brown, 380 U.S. 278 (1965) ....................... 35
N.L.R.B. v. Fansteel Metallurgical Corp., 306 U S 240 

(1939) ................................................................... ' _  32
N.L.R.B. v. Great Dane Trailers, Inc., 388 U.S. 26

(1967) 15, 37

f

’v-r*-



IV

N.L.R.B. v. Indiana Desk Co., 149 F. 2d 9S7 (7th Civ.

Sartor v. Arkansas Natural Gas Corp., 321 U.S 620 
(1944) .....................................  '

Schneider v. State, 30S U.S. 147 (1939)
Southern Steamship Company v. N.L.R.B., 310 U.S. 31

Teamsters Local No. 357 v. N.L.R.B., 365 U S 667 
(1961) .......................... ................................... ' ; g£

Tennant v. Peoria & Pekin Union Railway Co 391 
U.S. 29 (1944) ........................................... ; " 36

Tims v. Board of Education of McNeil, Arkansas 452 
F. 2d 551 (8th Cir. 1971) .........................................  w

Truax v. Raich, 239 U.S. 33 (1915) ............................ 19

United States v. Yellow Cab Co., 338 U.S. 338 (1949) 35

Victor Product Corporation v. N.L.R.B., 208 F 2d 834 
(D.C. Cir. 1953) .......................................  "  qi

194B> ............................................................. : . ...3 i"\t r i > y » -x- „ _ 31-32, 33

35

31
N.L.R.B. v. Longview Furniture Co., 206 F 2d 274 

(4th Cir. 1953) ........................ 33

32
37N.L.R.B. v. Walton Mfg. Co., 369 U.S. 404 (1962) . . . .

fbieita Knitting Mills v. N.L.R.B., 375 F 2d 385 (4ih 
Ca-. 1967) ......................................... ' ' l “

T» T ^  /v» ___
31,33

35
35



...
...

...
»-■

 -
--

--
...

..• 
. 

:

—*. fc-hc.;,.

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y

Wallace v. United States, 162 U.S. 466 (1896) .........  36
AV. J. Ruscoe Co. v. N.L.R.B., 406 F. 2d 725 (6th Cir

............................................................. : ...........31,33
AV. T. Rawleigk Co. v. N.L.R.B., 190 F. 2d 832 (7th Cir

m i )  .......................................................................... . ' 3 3

Statutes Cited
Title A711, Civil Rights Act of 1964, 42 U.S C $2000e 

et seq.............. .....................................................passim
28 U.S.C. 1254 ..................................  „

National Labor Relations Act, § 10(c), 29 U.S C 
^160(c) .. ' ’ ‘ '

v ’  28,30

« Miscellaneous Cited
110 Pono- o-crj

...  ........................................................ 20
110 Cong. Rec.. 6549 ........................ ; ........... 2Q

110 Cong. Rec. 7212-14............................................  2Q
110 Cong. Rec, 8350 ....................................  2Q

110 Cong. Rec. 11848 ................................  2
110 Cong. Rec. 15866 ...................................................... *......... AU
n o  Cong. Rec. 7213___

...................... ........................
n o  Cong. Rec. 2567 ......................

...........................................
n o  Cong. Rec. 2570 ..........................

...................................  A\)
n o  Cong. Rec. 2603 ................................

...................................  A\)
n o  Cong. Rec. 2593 ....................... 2g
110 Cong. Rec. 2594 ...................................

...................... • • • AJ
n o  Cong. Rec. 2595

................................ 29
Kule 15b, Federal Rules of Civil Procedure.................... U

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IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1972
o

No. 72-490

McDo n n ell  douglas corporation,
Petitioner,

v.
PERCY GREEN, 

Respondent.

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

BRIEF FOR PETITIONER

OPINIONS BELOW
The original majority and dissenting, opinions of the 

United States Court of Appeals for the Eighth Circuit, 
filed on March 30, 1972, and the revised majority opinion 
and supplemental dissert filed on May 12, 1972, are re-



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poi ted at 4°3 F. 2d .337 and are reprinted in Appendixes
A and B (pp. A-l through A-38) to the Petition for Writ
of Certiorari tiled in this case. The Memorandum Opinion
of the United States District Court for the Eastern Dis-

/ilC(1 °n September 25> 1970, is reported
A 40 it S iI'1a 846 and is reprinted Appendix ]) (pp. 
A-40 through A-49) to the Petition for Writ of Certiorari.

JURISDICTION

CouH °figAinal C;pi" i0ns 0f the three-judge panel of the
W on S f°r the Circuit were tiled on
Maicli oO, 1972. In rospoir^e to nofiiimmi*’ f n  i du. l lo pcnuoiiei timely Petition

0ri^ ial ^ io r i ty  opinion was 
• u( on . aj .12, 1972, and rehearing was denied with­

out prejudice to the right of either partv in ftp n potiti(m
xur rehearing addressed lo the modified opinion. Petitioner

ime y. SOUgll<’ shearing en banc on the modified 
opinion, which was denied by an evenly divided court on 
June 28 1972. The Petition for Writ of Certiorari was

w u m  ™  ^  i 972’ *«• OH Decem-
u k c :  S (1I 1,e •”irisd,c," m ”f lhis c ° - ‘ -  »

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QUESTIONS PRESENTED

hire Tllr  V11’ LS 311 employer’s right to refuse to
. , J°b appllCant who has committed illegal and un 

protected acts against the employer nullified or circum 
senbed merely because the applicant is black?

i

2. In Civil Rights cases involving allegedly discrimina 
tory acts, should the defendant be precluded from offer in o- 
subjecrive evidence to explain his motivation for thos!

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STATUTES INVOLVED

This case involves the construction and interpretation 
of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 
§20000, et seq., (Public law 88-352), the relevant portions 
of which provide as follows:1

Section 2000e-2:
(a) It shall be an unlawful employment practice 

for an employer—
(1) to fail or refuse to hire or to discharge 

anj individual, or otherwise to discriminate 
against any individual with respect to his com­
pensation, 1 eians, conditions, or privileges of em­
ployment, because of such individual’s race, color, 
religion, sox, or national origin.” Civil Rights 
Act of 1964-, §703(a) (1).

r/„ o n . o .

(.]) Nothing contained in this subchapter shall be 
interpreted to require any employer . . . subject to 
this subchapter to grant preferential treatment to any 
individual or to any group because of the race, color, 
religion, sex, or national origin of such individual or 
group on account of an imbalance which may exist 
with respect to the total number or percentage of per­
sons of any race, color, religion, sex, or national origin 
employed by any employer . . . ” Civil Rights Act of 
1964, §703(j).

Section 2O0Oe-3:
“ (a) It shall be an unlawful employment practice 

for an employer to discriminate against any of his

1 This case arose under Title VII as it. existed m-ior m 
1972 am endm ents (Public Law 92-261). I t should be noted how 
e \c r , th a t the 19(2 am endm ents did not affect any  of the sla t 
u to ry  provisions or legal issues involved in this action



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employees or applicants for employment . . . because 
he has opposed any practice made an unlawful em- 

oyment practice by this subchapter, or because he 
lace a c. aige, testified, assisted or participated 

” 3117 m“ mer in an investigation, proceeding, or
5 ; ! ; : tUs subchapici'-” ^  » * « .  a *  <*

Section 2000e-5:

le u lio ii lV 1,e C0“r,t fl" dS .‘la t  " ,c m pondM t l.as in- > engaged m or is intentionally engaging in
phinf ,7 0,ni,,0'™ cm Pracl*ce charged in life com-
rlaml, (he court may enjoin (he respondent from on-
gcY llg iJ1 sucil unlawful employment practice and 
order such atlirmative action as may he apyropriale 
vhieh may include reinstatement or hiring of employ­

ees. Avith or Avitlimit l ,.7- , ^
court eP.epi /  ,ja-v ‘ • ' Ao or(ler of the '

n r o l  7 q'" Te' ' ' ‘h0 Iliri”S, reinstatement, or
payment"! ° “  M"al ““ an em»'<>y«b »  «*>pa.f rnent to t o .  of any back pay, if s„ch individual
• • • was refused employment or advancement or vas
suspended or discharged for any reason other than
d'sci,m,nation on account of race, color, religion sex

of lid T h °r ™ V,'olntion of sootion 2000e-S(a) of this title. Civil Eights Act of 1904, 5706(g).

Section 2000e-7:

exeinnt ning r ' ^  8ubohaPter sha11 be deemed to 
f  01 reheve any Person from any liability duty 

penalty or punishment provided by any present or 
u me aw of any State or political subdivision of a 

Slate, oilier than any such law which purports to re 
quire or permit flic doing- of any act which would 
be an unlawful employment practice under this sub 
chapter.” Civil Rights Act. of 1964, §708.

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STATEMENT OF THE CASE
Respondent Percy Green is a black citizen of St. Louis 

Missouri. Petitioner McDonnell Douglas Corporation is an 
aerospace and aircraft manufacturer with its corporate 
leadquarters m St. Louis County, Missouri, where it em­

ploys m excess of 30,000 people.

This case involves an individual claim of discrimina- 
1(m ed by respondent Green against petitioner McDon­

nell claiming that McDonnell violated Title VII of the 
1964 Civil Rights Act (“ the Act” ) when it refused to 
11 r° G,VOn 0,1 2fi, 1963. This is not a class action or 

a ‘patteni or practice suit” but presents only the ques­
tion of whether McDonnell violated the Act in refusing to 
ire Green. Respondent seeks reinstatement and back pay 

• or himself as a result of petitioner’s allegedly wrongful 
iejection of Ins employment application.

The original complaint filed in the District Court 
charged that McDonnell had refused to hire Green because 
of his opposition to petitioner’s employment practices (a '

At. tria1’ however, respondent presented extensive evi­
dence m an attempt to establish that the decision was also 
motivated by the fact that respondent was black. In addi- 
tioiq Green also sought to prove that his previous layoff 
by McDonnell m 1964 was improperly motivated.

The District Court and the Court of Appeals properly 
ield that the layoff claim, interjected for the first time at 

trial, was barred by the statute of limitations and re 
spondent has filed no cross-petition in this Court seeking 
icview of that issue. Hence, the layoff is not before this 
Comt. However, because the issue of racial discrimination 
against Green is allegedly involved in the refusal to retire 
him, we lvill undertake here to trace Pro >

McDo,me11’ -  v  f t .  m s Z tT o u r t
8's ,vere nat disturbed by the Court of Appeals.’



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Events Leading Up to the 1964 Layoff

Respondent was originally hired by petitioner in 1956 
'■ e was a Qualified mechanic, a member of the 

muon, and was rated average by his supervisors (A. 323 
494). In 1962, he inquired about transferring from his 
union job to a non-union position in the laboratory depart­
ment of the Electronic Equipment Division (“ E.E.D.” )
( . 58, 270). One of respondent’s supervisors cautioned 
Inm against transferring out of his union status because 
of the danger of a layoff, the sacrifice of union seniority 
and because the work m the department, connected as it 
was with the Gemini space project, was expected to de-
Ch™ (A- 10°-02’ 270’ -« )•  At that time, respondent de- 
cided not to transfer but elected to remain at the position 
which he then held (A. 61, 102).

In 1963, Green reapplied foi
a  J I U M U O U  ill U K !  I ' j . i - j . l ) .

laboratory and was again cautioned about the hazards of 
such a move, which had increased because that department 
! a C°mpleti0n of thc Gemini simulator program
tt ’ • i 3/ J03'00’ 2‘2’ 342)- Nonetheless, he elected to take 

ie jo i (A. 63) and was assigned work similar to that

2 8 7 ^ 1 n  ml1™ With hiS 8Tade and exPeriencc (A. 107, 287, 346). 1 he record is replete with evidence that re­
spondent was not treated differently by McDonnell than 
was anyone else (A. 271-74, 295-96, 344-46).

position in (he E.E.D.

Green had been actively and publicly involved in civil 
lights activities and demonstrations since 1960 or 1961 and 
had received substantial publicity for some of his conduct 
(A. 69-70, 94, 208),- but such pursuits had not interfered

* Green is no s tran g e r to litigation as a result of his

? I fc T r tlVj97n ? • ’ ACr ° , M V■ Gan',0"> 450 F 2d

o /o  (8th Cir. 19/0), cert, denied 401 U.S. 923 (1971) " d

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“ ld " 'orc n<>‘ of any concern to McDonnell

Some personnel In the E.E.D. were laid off in the spring 
,,R„, ’ respondent was not among them (A. 131-32,

;  ,gUSt of **?, because of the reduced man- 
nee s 01 the Gemini simulator program (A 352)

:  beernne ev,dent that more technicians had'to be declared
standlrdir d t P,my thereupon made reference to the 
standa dmed rating system known as the “ totem pole ’’

Inch had been compiled in April (A. 292, 319) and which 
was used as a guide for pay and promotional purpose an 
ns a job evaluator (A. 289, 292-93, 354, 382, 441). Eighteen 

•".me tuling respondent, were declared surplus (A 352) 
Six of the men on the surplus list were higher than re 
•pondenf on t7jc totem pole (A. 353)

D em rtm euIT  ^  petitioner, k o n g h  its Personnel

' - S S  "  a v ^ b a v in g  7 ^  ^ ° u
t e ^ d  to hoSp l 01;neGUon’ * V0h" ^ ' y  tost was a d m i n t  

; d to help determ ine the qualifications fo r men fo r
higher job classifications which were open (A i n  394)
but respondent refused to take the test (A 355) ,  o ’
August 28, 1964, Green was laid off together with' ■ u

The “Stall-in” and “Lock-in”
After his layoff, and while McDonnell was still in the 

process of looking for alternative employment for Green“

criminatory. asserted by Green that the test was dis-

receive p r e f e r e n r i J f t r c a T m e n f a n d h P ^ 'f  in,sistence th a t he
job th a t involved a reduction in ioh refusal to consider any 483). reduction m  job sta tu s (A. 395-96, 444-45,

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in a “ s ,a ith i”  a ™ * * * ™ ^ »
C0EE ■ 'tlUOh I’"S|’01I' I' :" 1 and other members of
2  ” J f V  " ,Cir °ars ”  lhe ily trav-
a shift , °tA £ l o T ^ r ’3Pla,,t «* « “*  »fCiitU15e (A . 399-403). The second demonstration

-  A M
of the building (A. 132-33) ° ^  °n 1,10 front door

“ dT lb!!d in Petiti™ * ’* Exhibit
-  A  K ^ i T *

were uisi mpfr>ri  ̂ ^  tlic c<tis
Plel-h t U 10 "P "eX‘ to . M h ,  so „  e„m-
w ere m i t r ^  ^ ‘ s J o r Z 8 < A ' « *  ^

on©5hour ( T w ) ^  " ‘C re‘̂ "  “  l ^ M o a f t r

r r S C ^ C i M r s s
; r „ r .  « -

hour (A 126 271 TV, 1 J 1 f ° mormilS rush
problems that would re^K  (1  m >  H e")
™ ~  with the i n t e n / t  S h  T f ^
His car was m good running order bid he refn i 1
it voluntarily (A. 129). Itespondea “1 " . 'T
tile police, and lie was arrested for obstructin'..- 1,'Zk- * 
misdemeanor under Missouri law (A  1311 1? * ?’
]>leaded guilty to the charge of o t o c f t L  "!
was fined fifty dollars (A. 177). “ * and

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The “ lock-in” arose out of a demonstration on July 2, 
1965 in which respondent, as chairman of ACTION, another 
civil rights organization, was in charge of a picket line 
demonstration against McDonnell (A. 132). Prior to the 
demonstration, a member of ACTION stated his intention 
to chain the front door of the Roberts Building, which 
housed employees of McDonnell (A. 132). Respondent, 
the leader of the group, did not instruct him to refrain 
from this act (A. 132-33) and the door was in fact chained, 
locking petitioner’s employees inside the building (A. 
132-33). Respondent, as chairman of the group, testified 
that he approved the chaining of the door (A. 133).

The Employment Application *
On July 26, 1965, three weeks after the lock-in, respond­

ent applied tor a job at McDonnell as a mechanic, a posi­
tion lor which he was qualified (A. 84). llis application 
was forwarded the same day to R. C. Krone, McDonnell’s 
Vice President of Personnel, and C. L. Windsor, the Di­
rector of Personnel Services, who rejected it on the spot 
(A. 105, 499). The District Court found that McDonnell 
refused to rehire Green because of his participation in the 
stall-in and lock-in.5 318 F. Supp. at 850.

When asked for his reasons for not rehiring Green, Wind­
sor pointed unequivocally to the stall in and lock-in (A. 
405). Krone testified that Green had disqualified himself 
as a desirable employee by reason of the stall-in, which 
he characterized as “ an overt act to disrupt the normal 
activities of our company tantamount to sabotaging our 

' plant” (A. 455, 501).

' Respondent filed a complaint with the EEOC contend­
ing that he had been denied re-employment because of his

5 For the reasons set forth below in Point I.B., the principles 
involved in this case are the same whether the stall-in is considered 
alone or in conjunction with the lock-in.



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r!lC0 !tn<1 becirase of liis involvement in tl,e civil rights 
— I; ®E 0C  fo m d  ntaxxm w . cause to believe

, V  U , ?  0iVi' KiS''"S * *  W  hoc, vio-
' 1 McDonnell m refusing to employ Green because

of h.s ,evolve,nent in civil rights activities. The Commis­
sion made no finding with respect to the allegation prom- 
iscd on racial discrimination.

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Pre-Trial Matters

Respondent’s original complaint filed in the District 
/Ouit contained allegations only that McDonnell had “ in- 
ontionally engaged in an unlawful employment practice 

by having domed plaintiff employment because he he! 
opposeu practices made unfair employment practices by
s o t  A,!’OVCmmgequal employment opportunities” (A
,9 ) .  Although, as noted, respondent did not purport to

■' " f  - “cll0,b he neverlimless embarked ]iromptlv 
11 .. massive discovery campaign seeking access to and 

reproduction of literally hundreds of thousands of Me 
llonuoil records. Green tiled interrogatories (“ Set No

r i l T *  I™* a period nearly’
w o rk  f  ° 'S ,°”f  d e f j  lng tlK> im position of McDonnell’s 
nolle force broken down by job classification and race 
and sought further information about job transfers and 
promotions (A. 11). The information sought would have 
encompassed 662.000 applications for employment. 110,000 
actualI employment records in 1,400 job classifications (A 
It). It was estimated that the compilation of such in’ 
formation would require the services of three people
(A. 17)g G f0r nPProxlmat«ly three lo six mouths

. ;rllc Dif rict Ctrart> 0,1 petitioner’s objections, held these 
in eiiogalones to be oppressive and irrelevant (A 18) 
following which respondent filed a motion lo produce



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~ ^  !lK! ;Sa,,1C d0Clinients a,ld information- (A. 18). 
, Z  10 d tliat CCrtain documents relating to re-

Quh-od t “ n teStiUg °f aPP,icants would be qunod to be produced, but sustained objections to the

iX r 'a lia -  ^  th° gI'°inids of relevancy, stating,
/ ih ' Tll0I° ls 110 allegation in the complaint that

I  wasnotemployed w a s b —  *

theT peioduclioGldfthat g° f  CaUS° hRd lmt been s^ v n  for pioduction of over 70,000 files but did require the
}>roducfi°n of documents showing the requirements for

th° T tten teStS " * * * .  the oral
or i Pe v v 1 reqiUred’ th°Se P*™P* oral tests
i L  t  ’• 1>Urj,0Se of thc ^ sts  or interviews and 
the weight given to the rating resulting from such mi 
interview or test a s ‘they existed in July 1965 when re 
s ' ,0,l,,' i" 1 »l'piiod for employment (A. 2i).  ’

I t was at tlmt point, following Urn discovery orders

I r  t l o T t  t U p a“ ame,,dcd ™"P>aiat a sse r ti^ ’
addition t  V  ’ ‘Serm" nati011 0,1 a«™">t of race h
t i t  2  2% aZ T atHtt bascd l" J0” c iv il ,ights‘ '■ etitionei moved to strike the racial alWn

1 w rl T  " reafter’ a siSnihcant trend of decisioiitl
, ° 'C 0p® roachmg tlie opposite conclusion and it is

clear from thc record that the Distrirf p ,
departed from its rnling and that f  i  ° ,erei>fter

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S r '  th 'lS, t0 bG treated as the racial
, had been raised’ and ai>y error in striking the allega- 
10118 °f flle amended complaint was rendered harmless.0

The Trial

The case was tried  on the m erits fo r four days before

r e n l n f  n p V ' 8ltting wiUloat a W  The record isreple e with evidence offered by respondent attempting to
establish that both the layoff and the refusal to rehire
Wei'e in8pir®d by P^Jedicc against him because of his
Greeif fill T  1" ^  'T * ™  of his ciyil rights activities.Green filled the record with evidence concerning purported

G2 97 9^3681 ^  bccause oi' Jlis attire (A. 59,2, £7-99, 368). He also made repeated references to the
racial composition of McDonnell’s work force and of de­
partments therein (A 68.go 7070 100 in 1 -r i,-- . _
362-64, 464-67, 578). The racial climate at 'cape Kennedy 
Mas even interjected into the case (A. 153-54, 311) There 
wore also various references to charges of racism filed 
“7  7 feen Wlth numerous agencies, including the EEOC 
the 1 resident’s Committee on Civil Eights, the Missouri 
Commission on Human Rights, the Department of Justice 
the Department of the Navy, the Department of the De-

80-81 9081 thA (f CG °f f Cderal COntracl Compliance (A. 
r)n nd resp0ndeilt’s counsel cross-examined Mc-
Donnel s officers as to their own personal views about 
integration and racial discrimination (A. 360-61 379
414-15, 425-26, 456-57, 491-92). ’ ’

Petitioner supplied respondent willi -ill +],„ 1
m aterial sought to be discovered bv t  1 re levant
and the in terrogato ries (A 099 qq 10,1 ^or Production
withdrew his s u l p o c n T A fc s ^  foV Krone 267) * N ^theless, Green on his annnni 1 . y o I). Never-
discovery orders entered bv the c o u r t '^ h e " C o u r t '011? i1rc' t r ial
however, did not reverse any of the D istrict Co n  ’s d i t r T  ’ ary  discovery r u l in g  o7iri 1 c o u r ts  discretion-
those issues here ° 1 haS 1K>t sou^ht ™iew of



—  13 —

|

Respondent also put into evidence an analysis of the 
racial composition of petitioner’s work force since 1943, 
which included a 13-page statistical breakdown for the 
relevant years concerning terminations, status changes 
training, applications, job classification, longevity and 
miscellaneous other information relative to petitioner’s 
non-Caucasian employees (PI. Ex. 33, Tab 30).

It is abundantly clear that the issue of race discrimina­
tion was actually tried by the parties. The Memorandum 
Opinion of the District Court analyzed all of the evidence 
so submitted, and the Court of Appeals praised respond­
ent’s counsel for Jus resourcefulness. With respect to the 
hiyoff and the discussions which followed, the District 
Court noted that “ plaintiff indicated at these meetings 
that he thought he.was being laid off because of his race 
and civil rights activities.” 7n stating (V> contention* 
presented by the evidence and by Green’s post-trial brief’ 
the trial court characterized them as follows:

■ that defendant refused to rehire plaintiff be­
cause of Ins race, participating in civil rights activi­
ties and opposing practices made unlawful under the 
Civil Rights Act of 1964 . . . ” 318 F. Supp. at 849.

The District Court observed that respondent urged 
racial discrimination as a basis for recovery but found 
on a plenary record, that the stall-in and lock-in supplied 
the motivation for McDonnell’s decision and that these 
activities were not protected by Title VII. Accordingly 
it held that respondent was not denied employment "be­
cause of his race or his legitimate opposition to McDon­
nell s employment practices, and judgment was entered 
for petitioner (A. 45).

The Appeal

^ c m d e n t  app? led the District Court judgment to the 
EJighth Cncuit, and oral arguments were heard by a three 
judge panel on April 15, 1971. On March 30, 1972, each



14 —

manber of the panel filed a separate opinion. The ma-
J°U y !)1)’1U°n’ concuiTed in 1)>T two members of the panel 
lemanded the case to the District Court for further pro­
ceedings in accordance with the rules promulgated by the 
pmion. ihe  majority opinion held (1) that the District 

“  m deter“ ining that the layoff claim
trict Court ^  t Ki S!ftUte °f ]imitations’ (2) that the Dis­ci Com t properly determined that the stall-in and lock-in

r ivities ^  ^  v n ; (3) z
out t s pi e-trial order striking allegations of racial dis 

elimination from the complaint was erroneous; (4) that
S S T V -  n0t h" mleSSi “ O O) that McDoimoll’sad - 
nntted reliance on the stall-in and lock-in were not suf-
fleont reasons to justify its refusal to hire G r c e n T ! !  
pottuonor d'd not establish lire y *  a iIeo t o f £ £
d— atrons on Greeds ability to pc-form the job “

' f eiire,USaU°‘llire « * « *  case to
cat had node ,  ' • r™  ‘° °°Urt hcld lhat respond-t had made a prima facie case of racial discrimination

T he\urdog ^  !r ^  bIaCk ^  qualified for the job.
Donnell 1  f  ^  ^  maj°rity’ then P ^ d to Me-
g " W  P„ : r : by the reasons
ability tn , r  8 affect his

10 'motion as a mechanic. The concurring opinion
disputed the District Court’s finding that Green actively 
parttctpaled in the lock-in. and this obsoryation was an 
f .  ently made a part of the majority opinion. The only 
etfoct of this holding is to question whether McDonnell’s 
connection of Green to the look-in was accurate. The ’ a 
Jonty opinion of Court of Appeals did not sot aside X  
finding that McDonnell was in fact motivated by the still 
in and lock-m but merely questioned the extent of Green’s 
involvement m the lock-in and held that M„n , 
not entitled to rely on the lock in '™S



- a .  »f the por-
petitioner. He stater] <},.,< n • . d adversely to

» * s i « « i  : : : ; r z kt -  * * * * * in
served that whether the «<fln ; • ^ 1SSUe but °b-
conjunction with the Jock-in, 'ill DuZcfc^ 0116 ° f “  tutely correct in hr.i r  , blIICl houit was abso-

“ T cilnilin , staii-m alone:

or black, who had einri • ] • 1 wbether white
dictive misdeed vi­
and asrainst kk i . - n' r hls employees,
4b3 F. 2d at 348 -49 .^^  ,0mff permitted to operate.”

tiflede, di;SOnt “0t*  that a 'Vhite person would n o t bo CJ,

circumstances mid cC lleU “V U t,18Cnmi.natio“ ia identical
*•*■0 applicant ^  ^  ^  a
cause he is black V i • •  ̂ W fa c ie  case simply be-
lion of any racial tlerc was 110 sutrges-
characteriaed the majority opinio! “ “  ^

it, t S r e ^ l h f u  Xb] ^  is, an I  yiew
involved on the part of M .n l n™11®  M s »  fact 
its refusal to hire anyone who h ,1 aild 6Ve” though 
unlawful acts against' it a , d cngaged in such 
afford Green any lee ".Cre mvol« d  would not
i‘ ^ d  a white w,J0 “ " t » ° «  than

z  T2 :  t ^ r r u
-onid disrupt its operation.,-'



16

its misreading of tins Court’s opinion in Griggs v Duke 
Dower Co., 401 U.S. 424 (1971). The dissent also observed 
that the. erroneous shift of the burden plus the preclusion 
of subjective evidence has made it impossible for McDon­
nell to defend this action. “ What the court has held can, 
therefore, m my opinion, only mean that McDonnell is 
being required to reliire Green.” 403 F. 2d at 350.

McDonnell filed a timely petition for rehearing and on 
lay l l ,  1972, the panel majority issued a “ revised opin­

ion containing some primarily linguistic modifications of 
omf V ol the original opinion, to which Judge Johnson 

hied a supplemental dissent. As authorized by the order 
denying the original rehearing petition (A. 49), McDonnell 
leneived its request for a n en  banc determination, which
was denied by a 4-to-4 vote of thb Court en banc on June 
28, 1912 (A-. 49).7

I

1972Se,hpe p  111 ? ° '11,c‘ct,on vvith the appeal. On November 2 

Judge Johnson again dissenting. (See Docket E ntries, A. V,J

f*"*

£



— 1 7  — ■

SUMMARY OF ARGUMENT

The Court of Appeals lias drastically departed from the 
spmt and the letter of Title VII and has rewritten time- 
honored rules of procedure and evidence by announcing 
( ) that a black man establishes a prima facie case of 
racial discrimination by showing that he is black and 
qualified for a job, and (2) that the burden then shifts to 
the employer to prove by “objective” evidence that the 
reasons offered for not hiring the applicant were substan­
tially related to the requirements of the job.

The language and history of Title VII clearly require 
the complainant to prove that the employer’s challenged 
ac mn was impermissibly tainted by discriminatory moti­
vation. The Eighth Circuit, however, has bold that Hie 
burden is immediately transferred to the employer to 
prove the absence of discrimination once a black com­
plainant has established his race and qualifications. This 
rule is premised solely upon the color of the applicant, and 
its benefits are not available to white persons. I t thus ig­
nores Title VIPs policy of color-blind equality and re­
quires reverse discrimination.

The Court of Appeals has also held that once the burden 
inis shifted, the employer may justify his refusal to hire 
a black applicant only on the basis of the applicant’s abil­
ity to perform the job applied for. Petitioner’s refusal to 
ire respondent was based upon respondent’s illegal and 

unprotected activities directed against petitioner’s opera­
tions and employees. These factors are racially neutral 
m conception and in operation, and do not create arbitrary 
racia! barriers, but the Court of Appeals mistakenly relied 
upon Griggs v. I)uhe Power Company, 401 U.S. 424 (1971) 
to require that McDonnell’s rejection of Green, to be legal’ 
must be based solely upon job-related factors. Such a re -



—  18 —

qmmnent is violative of §706(g), which specifically sanc­
tions a y  employment decision made for any reason “ other 
than discrimination on account of race, color, religion sex
mi'™ T  < °ng,n °r hl Vi°lati0n of §704(a).” The unlawful

f 1KAr 7>0ngagCd 111 by GlCei1 I)rovided substantial rea­
son for McDonnell to refuse to hire him because Title VII
does not restrict the right of an employer to refuse to 
employ those who have interfered with the employer’s 
operations and harassed his employees. 1 *

FinaUy the Eighth Circuit erred in discrediting McDon- 
1 s explanation of its motivation for rejecting Green’s

maj°rity °ljhli0]1 lleld tliat “subjective”
• donee offered by an employer is essentiallv unworthy o<‘

an ob’ T  iU tllG empl°yer mUst eJ> b]i«h his defense by 
m oLjechve demonstration. This holding yuiis afoul of the

^self-eMdent proposition that the employer is the best
cc o information us to tiie motivation for his decision

and that he should, therefore, be allowed to testify on las
own behalf as to why the action was taken. ’The trier of
fact should be permitted to hear all the relevant evidence
mid determine the credibility of the witnesses and wei«di

mil testimony. In a case in which a determination of
motivation is critical, the fact finder cannot properly per-

evidence " C011sideî  en ab le  “subjective”



ARGUMENT

I. An Employer Has the Right Under Title VII to 
Refuse to Hire a Job Applicant Who Has Committed 
Illegal and Unprotected Acts Against That Employer 
Even Though the Applicant Is Black.

It has long been recognized in labor law and civil rights 
cases that an employer may refuse to hire any person 
for good reason, bad reason or no reason, absent dis­
crimination. See, e.g., Truax v. Raich, 239 U.S. 33 (1915); 
Tims v. Board of Education of McNeil, Arkansas, 452 F. 
2d 551 (8ih Oir. 1971). The effect of the majority opinion 
below is to repudiate this precept as regards minorities 
and to permit an employer to refuse to hire a prospective 
employee for good" reason, bad reason or no reason unless 
lie is bhirl,., in which case the employer will be presumed 
to have discriminated and will lie required to show by 
“ objective” evidence that the reason given was related 
to the applicant’s potential job performance.

Petitioner submits, in accordance with the dissenting 
opinion in the Court of Appeals, that the rules formulated 
by the majority, predicated as they are solely upon the 
race of the applicant, subvert both the spirit and the 
letter of Title VII.

A. The Fact That Respondent. Is Black Does Not Create 
a Prima Facie Case of Discrimination or Relieve Re­
spondent of the Burden of Proving That Petitioner’s 
Refusal to Hire Him Violated Title VII.

The cornerstone of the modified majority opinion of 
the Cornt of Appeals is contained in the following sen­
tence :

“ When a black man demonstrates that he possesses 
the qualifications to fill a job opening and that lie



—  20 —

h»s boon denied the job which continues to remain 
open, we think he presents a prima facie case of 
laeia] discrimination.” 463 F. 2d at 353

The effect, of this holding upon the instant case, and 
upon ornl ngl.ts eases generally, would appear to be 
twofold. First, as a practical matter, it effectively shifts 
tbo burden of proof, in cases where a black man is in­
volved, from the plaintiff job applicant to the defendant

faTo.0yof'' n " dl SC00nd’ “  discriminates infaioi of a b ack man and against other job applicants.
IV e subnut that the Court of Appeals erred i„ pronuil- 
gating this principle.

American jurisprudence lias traditionally imposed upon 
(he plaintiff the burden of proving j,is '  , upon
the language or the legislative h i ^  
vides even the slightest intimation that any attempt la s ' 
made by Congress in that statute to change the ordinary 
lidos ol prool. On the contrary, a Title VII action was 
expressly and consistently contemplated by Congress as

fngThe I  “ ” l ther i? ‘ ma”M r” oo'opWnant hay. ng the alhrmative harden of proving discrimination. Seo
110 Cong Eec 2060, 0549, 7212-14, 8350, 1, 848, , 5806*
hv 11° T i l  °f ll" soasc’ then> respondent was required 

e c to establish by a preponderance of the evi- 
deuce that he was refused employment because of his
D m lT ’ °r be0aUS0 of his Ia'rfwl opposition to Me- Donnell s employment practices.

s D uring  the debates on the House floor

show th a t there had 'p

>*
be brought against an employer and tb c re lf to r ' the 
w ould have to prove that lu> ,«,i n„t r  erCd.tei the employer 
no t have a burden It would ho t /  discrim inated. He would 
Cong. Eec. 2560 tl,e o ther W  around.” 110

k
P-



// /

—  21 —

The District. Court, properly apportioning the burden 
in the historically accepted manner, found that respond­
ent, despite four days of trial, 690 pages of testimony and 
the introduction of 47 exhibits, had failed to sustain his 
burden of showing that McDonnell’s rejection of his em­
ployment application was motivated by respondent’s race 
oi by his legitimate opposition to petitioner’s employment 
practices. The District Court, having observed the de­
meanor of the witnesses and having assessed their verac­
ity, found that the evidence clearly showed that McDon­
nell’s decision was inspired by the stall-in and lock-in 
and, therefore, that the refusal to hire was validly based 
upon Green’s unprotected misconduct.

The Eighth Circuit did not in terms disturb the finding 
that the stall-in and lock-in were in fact the basis for Mc­
Donnell’s action (although challenging the extent of 
Green’s participation in the lock-in) and agreed with the 
holding that such activities are not protected by Title 
VII. The District Court’s findings were overwhelmingly 
supported by the evidence,10 but the appellate court dis­
approved the standards applied by the trial court and re­
manded the case for further proceedings.

According to the Eighth Circuit majority, respondent 
established a prima facie case of racial discrimination

Hence, both lower courts have properly  conformed to this
^ r 7 rtJ L pronouncement in Cify ° f  Greenwood v. Peacock 384 
U S . 80b 826 (1966): “. . . [N]o federal law confers an ’abso­
lu te r ig h t on p rivate  citizens—on civil righ ts  advocates, on 
.Negroes, or on anybody else— to obstruct a public s tree t,”

Sec also, Cameron v. Johnson, 390 U.S. 611 (1968)- Cov -i 
, f " . ™ ’ 'V9 U S 536, 554-55 (1965); Schneider v. S la te ,'308 

160 ( ly3 9 ); Commonwealth o f Pennsylvania v. Hill, 
313 F. Supp. 1139 (W .D. Pa. 1970) and Commonwealth o f Penn­
sylvania v Leonard, 315 F. Supp. 215 (W .D. Pa. 1970), both a f­
firmed sub nom. Hill v. Commonwealth o f Pennsylvania 439 F 
2d 1016 (3d Cir. 1971), cert, denied 404 U.S. 985 ‘(1971)’

10 See the 
of Appeals’ 
Donnell.

discussion in Point II, infra, relative to the Court 
criticism of the type of evidence offered by Me-

t



merely by showing that he was black and qualified to fill 
a job opening which was denied him. Color alone, the 
Court held, can create a presumption of discrimination, 
and the employer must then come forward to prove the 
absence of a discriminatory animus. A white applicant- 
plaintiff in identical circumstances would not survive a 
motion for a directed verdict on such a meager showing, 
but a black plaintiff is said to be entitled to a presumption 
simply because of his color.

It must be borne in mind that the aim of Title VII is 
equality of employment opportunity, not a guarantee of 
employment. It was designed to be color-blind in its oper­
ation and to eliminate race as. a  factor in employment de­
cisions. Congress, in Section 703^) (42 U.S.C. § 2000e- 
2( j) ), pointedly cautioned against prefe ential treatment 
for any group. Yet, in carving out special rules for blacks, 
the Court of Appeals has in actuality required discrimina­
tion against whites and has critically impaired the right 
of employers to make valid nondiscriminatory employ­
ment decisions. In the terminology of the supplemental 
dissent below,

“ . . . The majority thus are holding, not that Green 
is entitled to the same opportunity as a white, but 
that he is entitled to one of a different and greater 
degree.” 463 F.2d at 355.

Under the Eighth Circuit’s rule, if fifty technically 
qualified people—49 whites and one black—applied for a 
job and if, as would seem probable mathematically, one 
of the whites were hired for perfectly nondiscriminatory 
reasons, the Negro applicant would automatically have a 
prim a facie ease under Title VII, but the rejected whites 
would not. Even if no one were hired, the black applicant 
would be presumed to have been discriminated against on 
account of his race, but none of the white applicants could 
avail themselves of such an advantage. Such results, lie-



sides being illogical, are totally at odds with the statutory 
purpose.11

In Griggs v. Duke rower Co., supra, at 430-31 this 
Court said:

“ In short, the Act does not command that any per­
son be hired simply because he was formerly the sub­
ject of discrimination, or because he is a member of 
a minority group. Discriminatory preference for any 
group, minority or majority, is precisely and only 
what Congress has proscribed. AY hat is required by 
Congress is the removal of artificial, arbitrary, and 
unnecessary barriers to employment when the barriers 
operate invidiously to discriminate on the basis of 
racial and other impermissible classification. ,12

In Section 706(g), the Act specifically exempts from its 
proscriptions any employment decision which is made for 
any reason other than race, color, religion, sex or national 
origin or in violation of § 704(a). The Act is directed 
only against discriminatory decisions. In the Interpretive 
Memorandum submitted by the Floor Managers of the 
Act, the proponents stated, 110 Cong. Rcc. 7213:

“ It has been suggested that the concept of discrim­
ination is vague. In fact it is clear and simple and 
has no hidden meanings. To discriminate is to make a

i i  A fu r th e r problem  arises by v irtue of the fact, that, while 
the E ighth  C ircuit’s rule is s ta ted  in term s of a “black m an,” 
it m ust be rem em bered th a t the sta tu te  which it purported ly  
im plements covers not only race and color but also sex, religion 
and national origin. The fallacy of the ru le  can be fu rth e r 
dem onstrated by postu lating  an application for employment by 

v a qualified B aptist laborer. If  lie were refused a job, he could 
\  recover even though the employer was com pletely unaw are of 

his religious affiliation. Sim ilar incongruous resu lts would 
eventuate in the case of women and, say, Canadians.

i? Em phasis ours here and throughout th is brief except as 
otherw ise noted.



I1! >
■ i

i i

i\

\y

?

distinction, to make a difference in treatment or 
favor, and those distinctions or differences in treat­
ment or favor which are prohibited by section 704 
are those which are based on any five of the forbidden- 
criteria: race, color, religion, sex and national origin. 
Anj other criterion or qualification for employment is 
not affected by this title.”

Discrimination, as prohibited by Title VII, means in­
tentionally departing from normal procedure when dcal- 
ing with minorities. Therefore, in order for a black 
plaintiff to establish a prima facie case of individual dis­
crimination, in the absence of an unlikely admission of 
prejudice by the employer or, perhaps, a history of over­
whelmingly pervasive exclusion of blacks from the em­
ployer’s work force, the plaintiff must offer proof either 
(a) that he was intentionally treated differently than a 
white person was or would have been treated under the' 
same circumstances or (b) that some inherently discrim­
inatory standard was applied to him. In the context of 
an application for employment, it would seem essential 
to an individual black plaintiff’s prima facie case to show 
either that a white man with lesser qualifications was 
hired instead of him or that his own qualifications were 
measured by a biased caliper.

The placing of such a burden on a Title VII claimant 
by Congress does not require him to prove facts peculiarly 
within the knowledge of the employer but merely means 
that he must be able to point to some facet of the transac­
tion which indicates a departure by the employer from 
regular procedure and which creates a permissible infer­
ence that the employer’s decision was improperly influ­
enced by a discriminatory factor. The mere fact that the 
applicant is black does not satisfy that requirement.

The purpose of Title VII is indeed wholesome and salu­
tary, and in fact its proper implementation is essential to

—  24 —

I

|

1 “"T ’ ■tmz F x tir t ;*' *.■< '



—  25

Ihe realization of the ideal of true equality. Because the 
Act was born of compromise, however, its reacli was in­
tentionally confined, a circumstance which has caused 
some of the lower federal courts to believe that judicial 
revision and amplification is desirable. With respect to 
the issues presented by this case, however, the Court of 

j Appeals’ burden-of-proof rule does not further Title VIPs 
mandate but in fact leads to results which are diamet­
rically opposed to the expressed statutory purpose. Peti­
tioner submits, in accordance with the dissent below, that 
the Eighth Circuit has sponsored favoritism rather than 
equality and, by its creation of presumptions based on 
race, has sanctioned reverse discrimination.

B. There is No Requirement Under Title VII That an 
Employment Decision, Racially Neutral in Conception and 
Operation, Must Be Based Only Upon Job Performance.

The Eighth Circuit majority opinion appears to hold 
that the stall-in and lock-in could not be relied on by 
McDonnell as reasons for rejecting Green’s application 
unless it could prove some connection between those ac­
tivities and Green’s ability to be a mechanic.13 This hold- 
ing, like the burden-of-proof rule, was presumably 
prompted solely by respondent’s status as a Negro and 
is thus subject to the same legal and logical infirmities 
discussed above in Subsection A.

13 The original and revised m ajority  opinions both contained 
the statem ents th a t “the d istric t court failed to consider 
w hether the reasons given by McDonnell for not reh iring  Green 
were re la ted  to the requirem ents of the job,” and “the record 
shows th a t McDonnell has taken  the position th a t it has the 
r ig h t under Title V II to make subjective h iring  judgm ents 
which do not necessarily rest upon the ab ility  of the applicant 
to perform  the w ork requ ired .” 463 F. 2d a t 342, 343 352 
This language seems to nu llify  the effect of the revised opinion’s 
deletion of th a t portion of Section V containing an express re ­
quirem ent for tying the reason to the job. See the supplem ental 
dissent, 463 F. 2d at 355.



■ 2 6

■

If
** I

w

 ̂■ This Case Does Not I'all Within the Rule of Griggs 
v. Duke Power Co.

The sole authority cited by the appellate court in sup­
port. of its “ job-related” requirement is Griggs v. Duke 
Dower Co., 401 U.S. 424 (1071). With due deference to 
Hie Court of Appeals, we submit that the majority opinion 
is predicated upon a distorted reading- of Griggs and rep­
resents an extension of Title VII which is totally unjusti­
fied by the history or the language of the statute or by 
the Griggs decision.

Griggs was a class action against an employer with a 
history of overt pre-Act discrimination. The issue pre­
sented to this Court was the validilv of two standardized 
employment practices, i.e., the requirement of a high 
school diploma, and the successful completion of two gen- 
eial aptitude tests. These were employer-erected barriers 
io employment which, though neutral on their face and 
not intended to be discriminatory, “ operated to render 
ineligible a markedly disproportionate number of Ne­
groes.” Id. at 429.

The purpose of Title VII, the Court stressed, was to 
achieve equality of employment opportunity and to re­
move roadblocks that historically had favored whites over 
blacks. Ilie Court held that Negroes’ substandard per­
formance on the tests was directly traceable to race be­
cause of the inferiority of schooling which had been 
provided through the years for members of their race. 
Since the Act is designed to remove artificial, arbitrary 
and unnecessary barriers to employment which operate 
invidiously to discriminate on the basis of race, it there­
fore prohibits not only overt discrimination but also 
practices which are fair in form but discriminatory in 
operation. Also proscribed are practices, procedures or 
tests neutral on their face and neutral in terms of intent 
“ if they operate to ‘freeze’ the status quo of prior dis-

3T-3s



—  27

criminatory employment practices.” Id. at 430. Tlie Court 
expressly disclaimed any suggestion that the employer’s 
intent is irrelevant in a Title VII case, but held that 
“ good intent or absence of discriminatory intent docs not
redeem employment procedures or testing mechanisms 
that operate as ‘built-in headwinds’ for minority groups 
and are unrelated to measuring job capability.” Id. at 432.

The gist of Griggs was thus only that an employer has 
the burden of showing that any standardized job require­
ment which has a tendency to reduce job opportunity be­
cause of race has a demonstrable relationship to the job 
in question. The u n a n im o u s  Griggs decision has no ap­
plication to the issues presented in the instant case. Here 
the District Court, was called upon to analyze not: the 
validity of procedures or tests but simply the motivation 
of an employer in refusing to hire a single individual. 
The behavior to he scrutinized in this case is not. that of 
the employer in formulating general practices which re­
sult in arbitrary barriers to employment, but that of the 
would-be employee who is seeking the benefits of the Act. 
The condition in which respondent finds himself here is 
not the regrettable result of years of racial subjugation 
and was not caused by publicly sanctioned deprivation of 
adequate education or training. His failure to gain em­
ployment with McDonnell resulted from his intentional 
and purposeful illegal activity.

Finally, we are not here concerned with an inherently 
discriminatory employer act, practice or decision, either 
as intended or as implemented. It goes without saying 
that any individual—whether black or white, Catholic or 
Protestant, male or female—who committed the deeds en­
gaged in by Green would have been denied employment 
by any self-respecting employer against whom they were 
directed. There is no inherent or subtle discrimination in 
a decision not to hire a saboteur, and thus the “ joh-

VST"*'



28

related” test of Griggs does not come into play because 
of the absence of “ built-in headwinds for minority 
groups.” Clearly, the rejection of a white applicant under 
identical circumstances would not be required to be eval­
uated in terms of job performance, and the rules should 
not be changed solely on the basis of applicant’s color.

2. Section 706(g) Permits Any Non-discriminatory 
Business Decision Made for Any Reason, Whether 
or Not Based Upon Job Performance.

The Eighth Circuit’s approach to racially neutral em­
ployer decisions, discriminatory neither in their form nor 
in their consequences, is unrealistic and would produce
bizarre results antithetical to the philosophy of Title VIL 
It deprives the employer of his\>gitimate right to make 
business decisions based upon valid, non-discriminatory 
business considerations. It further ignores the specific 
language of Section <06(g) of the Act, which pio\ides 
as follows:

“ No order of the court shall require . . . the hiring 
. . .  of any individual as an employee, or payment 
to him of any back pay, if such individual was . . . 
refused employment . . . for any reason other Ilian 
discrimination on account of race, color, religion, sex, 
or national origin or in violation of § 704(a).”

Like the National Labor Relations Act ( NLRA ), 
Title VII was obviously intended “ to leave unscathed a 
wide range of employer actions taken to serve legitimate 
business interests.” American Ship Building Go. v. N.L. 
R.B., 380 U.S. 300, 311 (1965).

The legislative history of Section 706(g) is instructive 
as to the Congressional intent. As originally drafted, the 
bill read much like § 10(c) of the NLRA (29 U.S.C. 
§ 160(c)), in that it insulated only those employer actions

X



/

taken for “ cause.” The Celler Amendment, recognizing 
the limited purpose of the proposed legislation, struck the 
word “ cause” from the bill, so that any employer action 
would expressly be beyond the pale of the Act if taken 
“ for any reason other than discrimination on account of 

I race, color, religion or national origin.”
Representative Celler, the floor manager of the bill, 

explained his amendment, 110 Cong. Rec. 2567:
“ Mr. Chairman, the purpose of the amendment is 

to specify cause. Here, the court, for example, cannot 
find any violation of the act which is based on facts 
other-—and I emphasize ‘other’—than discrimination 
on the grounds of race, color, religion or national 
origin. The discharge might be based, for example, 
on incompetence or a morals charge or theft, but the 
court can only consider charges based on race, color, 
religion or national origin.” 14

The amendment, eventually adopted, was also character­
ized as clarifying the employer’s right to discharge an 
employee for ineptness or drunkenness (110 Cong. Rec. 
2570), or because he drank or smoked or swore (Id. at 
2603).

Significantly, during the debate on Title VII, another 
amendment was offered which would have prohibited a 
union from giving a preference to any applicant in certain 
programs for “ reasons other than job qualifications” and 
reasons which might be indirectly discriminatory on the 
basis of race. (110 Cong. Rec. 2593.) The amendment, 
while praised for its humanitarian aspirations, was de­
nounced by Title VII proponents as not being germane to 
the issue of race discrimination (Id. at 2594, Remarks of 
Reps. Roosevelt and Griffin), and was defeated (Id. at 
2595). Hence, Congress considered and rejected the very 
concept espoused below7 by the Court of Appeals.

14 Sex was added later as a classification of discrimination.

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I;
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V

i'i1

There is simply no foundation in law, equity or com­
mon experience for the Eighth Circuit’s holding that the 
stall-in and lock-in must affect Green’s future job per­
formance in order to validate McDonnell’s rejection of his 
application.15

3. The “ Stall-in” and “ Lock-in” Justified 
tioner’s Refusal to Hire Respondent.

Peti-

As noted, Section 706(g) is comparable to but even more 
explicit and restrictive than § 10(c) of the NLRA, which 
prohibits the reinstatement of any individual or payment 
to him of any back pay if he was suspended or discharged 
for just cause. In Fibrcboard v. N.L.R.B., 379 II.S. 203, 
217 (1964), the Court observed that § 10(c) was intended 
to dispel the notion that “ engaging in union activities car­
ries with it a license to loaf, wander' about the plant, re­
fuse to work, waste time, break rules and engage in in­
civilities and other disorders and misconduct.” The Court 
held in addition that § 10(c) was “ designed to preclude 
the Board from reinstating an individual who had been 
discharged because of misconduct.” Neither does Title 
V II authorize prospective employees to engage in oppro­
brious misconduct against a company and then allow them 
to charge “ bias” when their applications meet the fate 
which they should have readily anticipated.

A full rejoinder to Green’s contentions was given in 
Glover v. Daniel, 318 F. Supp. 1070, 1075 (N.D. Ga. 1969), 
affirmed 434 F.2d 617 (5th Cir. 1970):

“ . . . [Wjhile a teacher undoubtedly has the right 
to disagree with the boss and even to tell him off, it 
has nothing to do with race to say that he does so at

ir> E ven in public employment, it is clear th a t  job perform ­
ance need not be the sole yardstick  for m easuring the fitness 
of an employee. Bcilan v. Board of Education of Philadelphia, 
357 U.S. 399 (1958).

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31 —

his peril. Unquestionably, the First Amendment gives 
a teacher the right to speak his mind; but it does not 
give him the right to disrupt a school or to choose 
its principals or to sabotage its programs.”

McDonnell’s rejection of respondent was not attributable 
to his status as an innocent victim of history or of his en­
vironment. Rather he had shown himself to be devoted 
to the disruption of McDonnell’s operations. “ There is 
no more elemental cause for discharge of an employee than 
disloyalty to his employer.” N.L.R.B. v. Local Union 
1229, I.B.E.W., 346 U.S. 464, 472 (1953). Percy Green’s 
behavior should not be required to be forgiven or forgot­
ten by McDonnell unless Title VTT was designed to abro­
gate widely respected concepts of civility and morality. 
In Adler v. Board,of Education, 342 U.S. 4S5, 492 (1952), 
the Court, quoting with approval from flamer v. Los An­
geles Board, 341 U.S. 716, 720 (1951), held tha t not even 
a public employer need blind itself to the trouble-making 
propensities of an employee:

“ AVe think that a municipal employer is not dis­
abled because it is an agency of the State from in­
quiring of its employees as to matters that may prove 
relevant to their fitness and suitability for the pub­
lic service. Past conduct may well relate to present 
fitness; past loyally may have a reasonable relation­
ship to present and future trust. Both are commonly 
inquired into in determining fitness for both high 
and low positions in private industries and are not 
less relevant in public employment.”

Under the NLRA, it has consistently been held that an 
employer has the absolute right to discharge an employee 
who has participated in barring access to the employer’s 
premises. IF. ,7. Ruscoc Co. v. N.L.R.B., 406 F. 2d' 725
(6th Cir. 1969); Victor Product Corporation v. N.L.R.B., 
208 F. 2d 834 (D.C. Cir. 1953); Oneita Knitting Mills v. 
N.L.R.B., 375 F. 2d 3S5 (4th Cir. 1967); N.L.R.B. v. Indi-



ana Desk Co., 149 F. 2d 987 (7th Cir. 1945); N.L.R.B. v. 
Perfect Circle Co., 162 F. 2d 506 (7tli Cir. 1947).

Both the NLRA and the Civil Rights Act condone only 
that type of demonstration or opposition which consists 
of lawful behavior. In N.L.ll.B. v. Pansteel Mctalhugical 
Corp., 300 U.S. 240 (1939), the Court upheld the right of 
an employer to fire employees who had participated in an 
illegal “ sit-down” strike, stating at 252:

“ This conduct on the part of the employees mani­
festly gave good cause for their discharge unless the 
National Labor Relations Act abrogates the light- of 
the employer to refuse to retain in his employ those
who illegally take and hold possession of his prop­
erty. ’ ’

The Board argued that the employer’s previous unfair 
labor practices justified the employees actions and le- 
quired their reinstatement.. Those contentions were re­
jected, the Court holding that no matter how reprehensible 
the employer’s conduct, the employees must confine their 
retaliation to legal acts or avail themselves of their legal 
remedies or their right to strike, but they cannot expect 
judicial approbation of unlawful acts which infringe upon 
the rights of others:

“ To justify such conduct because of the existence 
of a labor dispute or of an unfair labor practice 
would be to put a premium on resort to force instead 
of legal remedies and to subvert the principles of 
law and order which lie at the foundations of society.

We are unable to conclude that Congress in­
tended to compel employers to retain persons in 
their employ regardless of their unlawful conduct. 

The conduct thus protected is lawful conduct.”

See also Southern. Steamship Company v. N.L.R.B., 316 
U.S. 31 (1942); National Packing Co. v. N.L.R.B., 352 
F. 2d 482 (10th Cir. 1905); Buttny v. Smiley, 281 F. Supp.

—  32 —



33

280 (D. Colo. 1968); Esteban v. Central Missouri State 
College, 415 F. 2d 1077 (Stli Cir. 1969) cert, denied 39S 
U.S. 965 (1970). The reasoning of these decisions is 
even more apt when applied to the operations of a major 
government defense contractor like McDonnell.

If Green had a legitimate quarrel with McDonnell’s 
policies, the appropriate vehicle for ventilating his views 
was the legal process of the EEOC and the courts, not the 
illegal blocking of streets and sidewalks, lie cannot inter­
fere with McDonnell’s operations and harass its employees 
and thereafter claim an exemption for his actions because 
of his color. The fact that no violence or personal or prop­
erty damage occurred, thanks to efficient police work, does 
not excuse Green’s behavior. IF. T. Rawlcigh Co. v. 
N.L.R.B., 190 F. 2d 832 (7th Cir. 1951); N.L.R.B. v. In­
diana Desk Co.supra.

For this Court to approve the rules and the reasoning 
of the Eighth Circuit would he to give the judicial im­
primatur to conduct such as that, of respondent, and 
would thwart the mandate of Title VII by authorizing 
the substitution of physical self-help for conciliation. 
The District Court was correct in ruling the stall-in and 
lock-in30 to be justifiable disqualifying factors, whether

10 The concurring judge in the C ourt of Appeals thought it  
significant tha t Green did not personally chain the doors of the 
R oberts B uilding during  the “lock-in.” The evidence is clear, 
however, th a t he was in charge of the dem onstration and had 
advance notice of the p lan  to chain the door, in which he ac­
quiesced. Those who partic ipa te  in illegal p ro test activities and 
who actively cooperate w ith offenders are equally to blame and 
must suffer the consequences. W . J. Ruscoc Co. v. N .L .R .B ., 
supra; N .L .R .B . v. Longview Furniture Co., 206 F. 2d 274 (4th 
Cir. 1953); Oncita Knitting Mills, Inc. v. N .L .R .B ., supra. In 
any event, even if McDonnell had been m istaken as to Green’s 
role in the lock-in, such a m isconception w ould not have ta r ­
nished its perfec tly  valid employment decision based on the 
stall-in. The record  is clear th a t the individuals who made the 
decision had  been advised th a t Green was the leader of the 
lock-in dem onstration (A. 404), and  th e ir good-faith reliance 
on this inform ation— even if m istaken in fac t—would not con­
s titu te  a T itle V II violation.

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or not they would have affected Green’s job performance. 
To hold otherwise would be to allow respondent to profit 
by his own wrongdoing.

II. In Civil Eights Cases Alleging Discrimination, the 
Employer {Should Be Allowed to Offer Subjective Evidence 
as to His Motivation, and the Weight to Be Accorded to 
Such Evidence Should Be Determined by the Trier of 
Fact.

The majority opinion of the Court of Appeals held in 
effect that “ subjective” criteria are entitled to little or 
no weight in a case of alleged job discrimination. It dis­
missed petitioner’s evidence of respondent’s illegal activi­
ties as unvoithj of credence in the context oi a refusal 
to hire, and characterized it, and employer evidence gen- 
erallyf as “ pretextual.” The effect of the opinion, as the 
dissenting judge interpreted it. is to instruct the trier of 
tact that no evidence which petitioner might offer that 
the stall-in or lock-in occasioned the refusal to hire should 
be given any consideration.

Although, for the reasons cited above in Point I.A., Arc 
Donnell submits that Green failed to make a prima facie 
case of discrimination, nevertheless McDonnell did not 
rest at the end of respondent’s case and did not merely 
deny any wrongdoing, but came forward with an abun­
dance of creditable evidence of its motivation and es­
tablished valid non-discriminatory reasons for refusing em­
ployment to Green. But according to the Court of Appeals, 
petitioner’s evidence is suspect and cannot support its de­
fense. We submit that the Eighth Circuit’s effective abo­
lition of subjective evidence was based on an erroneous 
premise, and the adoption of such a rule by this Court 
would hamstring the judicial process in its quest for truth.

Even if we assume, arguendo, that respondent made a 
prima facie case under the Act, then at most “ the burden



35 —

is on the employer to establish that he was motivated by 
legitimate objectives since proof of motivation is most ac­
cessible to him.” N.L.R.B. v. Great Dane. Trailers, Inc., 
388 U.S. 2G, o4 (19G7). The search in a discrimination case 
is for the employer's “ real motive” in an attempt to 
identify and rectify employment decisions prompted by 
racial 01 other forbidden prejudices. Associated Press v. 
N.L.R.]{., 301 U.S. 103, 132 (1937); Iladio Officers v. N.L. 
R.B., 347 L.S. 17 (1954); N.L.R.B. v. Jones & Lauglilin 
Steel Carp., 301 U.S. 1, 4G (1937). Once a pritna ‘facie 
case of discrimination has been made out, the inquiry 
should then focus upon whether the employer’s conduct 
was primarily motivated by racial animus and was thus un­
lawful. A .Jj.R.B. r. Rromi, 380 U.S, 278, 2SS (19G5) • Radio 
Officers v. N.L.R.B., supra; Teamsters' -Local No. 3 5 7  v. 
N.L.R.B.. 365 F.& 667, G75 (1963). The unprecedented 
holding of Court of Appeals has severely hindered this 
investigatory process by its command that the employ­
er’s subjective explanation for his actions be disregarded.

A requisite of the orderly functioning of our legal sys­
tem is the entrustment of the fact finding process to the 
jury or court, under proper standards, and the recogni­
tion of the fact finder’s superior ability to appraise a wit­
ness candor and to evaluate the testimony given by that 
witness in the light of his interest, in the outcome of the 
lawsuit. Often the most critical and difficult inquiry which 
must be made by the fact finder is that of motivation, for 
m a wide variety of legal actions, the actor’s intent or 
motivation is outcome-determinative. Nonetheless, in anti­
trust,1' tax,17 18 * and other civil cases,10 as well as in crim-

17 United Stales v. Yellow Cab Co., 338 U.S. 338 (1949).

18 Commissioner v. Duberstcin. 363 U.S. 278 (I960) - Rudolbh 
iu United Stales, 370 U.S. 269 (1962). ’ ^

10 Bank v. Kennedy, 17 Wall. 19 (1872).



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inal proceedings,20 this Court lias consistently afforded 
the defendant the right to state his intent and has allowed 
the trier of fact to determine the trustworthiness of the 
witness and the weight to be given to liis testimony. For 
example in Wallace v. United States, 162 U.S. 466, 477 
(1896), the Court stated as follows:

“ If has often been decided that where the intent is 
a material question, the accused may testify on his 
own behalf as to what his intent was in doing the 
act.”

Certainly if such a rule is appropriate in a criminal case, 
where the witness’ very freedom is at stake and the risk
of falsified testimony is thus maximized, there is no reason 
to foreclose an employer from explaining his state of mind 
in a Title V I1 case. No court had so held until the Fightli 
Circuit decision under review here. While the Court of 
Appeals rule ostensibly referred only to tiie “ weight’’ to
be granted to subjective evidence, in operation it actually 
functions as one of admissibility, or, perhaps more ac­
curately-, as a substantive rather than an evidentiary rule. 
Even on the compelling facts of the instant case, McDon­
nell’s clear showing of its motivation is, under our read­
ing of the opinion of the Court of Appeals, to be given no 
weight whatsoever. As a practical matter, the evidence 
is relegated to the same status as if it had been declared 
totally inadmissible.21

20 Wallace v. United States, 162 U.S. 466 (1896); Crawford 
v. United States, 212 U.S. 183 (1909).

\ „

21 To the extent, however, that we are in fact concerned with 
a question of w eight ra th e r than  adm issibility, the E ighth  Cir­
cuit has d isregarded the well-established doctrine th a t^ th e  task  
of weighing the evidence properly  belongs to the d istrict court. 
Tennant v. Peoria & Pekin Union Railway Co., 321 U.S. 29 
(1944) ; Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 628 
(1944); Aetna L ife  Insurance Company v. W ard 140 U S  76 
(1891). ’

l

f



The apparent thesis underlying Ihe Court of Appeals’ 
abolition of subjective evidence is a suspicion that men 
may lie when questioned about their motives. Such rea­
soning smacks of the old common law rule which rendered 
a party to an action incompetent to testify because of his 
interest in the outcome of the litigation. For years, how­
ever, modern courts have recognized the ability of the 
fact finder to weigh the interest of a witness in assessing 
his veracity. N.L.R.B. v. Walton Mfg. Co., 369 U.S. 404 
(1962).22 This Court’s opinions in the labor cases, see 
N.L.R.B v. Great Bane Trailers, Inc, supra, have specifi­
cally acknowledged that the person who makes the chal­
lenged employment decision is the best possible source 
or knowledge as to why it was made, and he should be
allowed to state the reason. The safeguard of cross-exam­
ination, as well as the fact finder’s opportunity to observe 
the witness’ demeanor*, provides ample protection against 
the possibility that perjured testimony mi edit carry fho
day. In.Commissioner v. Buber stein, 363 U.S. 278 (1960) 
the Court reaffirmed its adherence to the historically rec­
ognized role of the fact finder, in language befitting a 
Title VIT case:

“ Decision of the issue presented in these cases must 
be based ultimately on the application of the fact­
finding tribunal’s experience of human conduct to the 
totality of the facts of each case. The non-technical 
natuie of the statutory standard, the close relationship 
of it to the data of practical human experience, and 
the multiplicity of relevant factual elements, with the 
various combinations, creating the necessity of ascrib­
ing the proper force to each, confirm us in our conclu­
sion that primary weight in this area must be given 
to the conclusions of the trier of fact.”

22 I f  we repose such confidence 
and lay  ju rors, certain ly  a t least the 
to federal d istric t judges.

in adm inistrative agencies 
same respect m ust be paid



f  « ft

/

:s;

The “ objective evidence” rule formulated by the Eighth 
Circuit was not advocated by any of the parties to this 
case but was conceived by the panel majority su-a sponte, 
as were the burden-of-proof rule and the job-relatedness 
test. Cited in support of this prohibition of subjective 
evidence was a school-teacher displacement case decided 
by an appellate panel of which the authors of the ma­
jority and concurring opinions below were members, 
Moore v. Board of Education of Chidcster School District, 
4.48 F. 2d 709 (8th Cir. 1971). There it was held that 
where the number of available public teaching jobs is 
reduced by virtue of the implementation of a desegrega­
tion plan, teacher layoffs must be measured against ob­
jective criteria, such as amount of education,, experience, 
and the like. Such rules have no relevance in a case where 
the judicial inquiry seeks only to determine the reasons 
why a particular job applicant was refused employment. 
A or are such standards adaptable to applications for em­
ployment in private industry, where the circumstances are 
likely to be infinitely varied and where the statute au­
thorizes rejection of a prospective employee for any rea­
son other than a discriminatory one.

In Fluker v. Alabama State Board of Education, 441 F. 
2d 201 (5th Cir. 1971), the court rejected the contention 
that a school board could justify its termination of a non- 
tenured teacher only by demonstrating “ that he has 
failed to comply with some previously announced stand­
ard.” The court acknowledged that such a principle 
would afford security for school teachers but found it 
wanting in law and deleterious to the school’s right to up­
grade its faculty and academic standing, stating, at 207:

“ Appellants’ proposal of this requirement also 
ignores the highly subjective nature of employer- 
employee relationships. . . . We can see that . . . 
there are an enormous number of fact situations in

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which the non-reappointment of an employee may be 
justified by highly subjective and perhaps unforsee- 
able considerations. ’ ’

Like (he dissenting judge below, petitioner is at a loss 
lo understand how an inquiry as to motivation can be 
undertaken on the basis of only “ objective” evidence or, 
for that matter, to understand what “ objective” evidence 
is in the context of (he instant case. Would it require 
McDonnell to have a written policy of not hiring anyone 
who had intentionally disrupted traffic or locked its em­
ployees in a building? Did the Court of Appeals mean to 
say that a suspected embezzler or arsonist could not be 
rejected unless the employer can point to some objective 
standa 1 d covering the situation? Common sense confirms 
the existence of such' policies but also demonstrates the

■rib of ‘d e f i n e  the? i i iu g  and Lne i u u u t y
of attempting (o anticipate the almost infinite number of 
possible factual variations.

In summary, the District Court committed no error 
with regard to the admissibility or weight accorded to 
McDonnell’s testimony as to its reasons for not hiring- 
Green.

CONCLUSION

The record amply supports the determination of the 
experienced trial judge that McDonnell acted within its 
rights in refusing employment to Green. The District 
Court tried this case under proper standards and reached 

\  the light result. The Court of Appeals misconstrued the 
statute and this Court’s opinion in Griggs, improperly 
assigned (he burden of proof and erroneously restricted 
(he evidence which could be considered in explanation of 
petitioner’s actions.

I