McDonnell Douglas Corporation v. Percy Green Brief for Petitioner

    IN THU

OCTOBER TERM,. 1072

No. 72-490

McDo n n e ll  d o ug las  c o r p o r a tio n ,
Petitioner,

v.

PERCY GREEN,
Respondent.

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

BRIEF FOR PETITIONER

R. H. McROBERTS 
VERYL L. RIDDLE 
THOMAS C. WALSH 

500 North Broadway 
St. Louis, Missouri 63102 

Attorneys for Petitioner
BRYAN, CAVE, McPHEETERS &

McROBERTS 
Of Counsel

St. Louis Law Printing Co., Inc., 411-15 N. Eighth StTVaiQl 314-231-4477



K

1

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INDEX
Page

Opinions below .................................................................  1

Jurisdiction ......................................................................  ^

Questions presented ........................................................... ^

.Statutes involved ..............................................................  3

Statement of the case .......................................................  5
Events leading up to the 1964 layoff ........................  6

The “ Stall-in”  and “ Lock-in”  .................................... 7

The employment application ........................................ 9

Pre-trial matters .........................................................  10
The trial ....................................................................... 12

The appeal .....................................................................  13

Summary of argument ......................................................  17

Argument ............................................................................  19
I. An employer has the right under Title YII to 

refuse to hire a job applicant who has com­
mitted illegal and unprotected acts against that 
employer even though the applicant is black .. 19
A. The fact that respondent is black does not

/ create a prima facie case of discrimination
or relieve respondent of the burden of prov­
ing that petitioner’s refusal to’ hire him 
violated Title YII ............................................  19

B. There is no requirement under Title VII
that an employment decision, racially neu­
tral in conception and operation, must be 
based only upon job performance ................ 25



n

1. This case docs not fall within the rule of
Griggs v. Duke Power Co............................ 26

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

3. The “ Stall-in”  and “ Lock-in”  justified
petitioner’s refusal to hire respondent .. 30

II. In civil rights cases alleging discrimination, 
the employer should be allowed to offer sub­
jective evidence as to his motivation, and the 
weight to be accorded to such evidence should
be determined by the trier of f a c t .....................  34

Conclusion ........................................................................  39

Cases Cited

ACTION v. Gannon, 450 F. 2d 1227 (8th Cir. 1971) .. 6
Adler v. Board of Education, 342 U.S. 485 (1952) . . . .  31
Aetna Life Insurance Company v. Ward, 140 U.S. 76

(1891) ............................................................................  36
American Ship Building Co. v. N.L.R.B., oSO U.S. 300

(1965) ............................................................................  28
Associated Press v. N.L.R.B., 301 U.S. 103 (1937) .. 35

Bank v. Kennedy, 17 Wall. 19 (1872) ......................... 35
Beil an v. Board of Education of Philadelphia, 357

U.S. 399 (1958) ...........................................................  30
Buttny v. Smiley, 281 F. Supp. 280 (D. Colo. 1968) . .32-33

Cameron v. Johnson, 390 U.S. 611 (1968) .................  21
City of Greenwood v. Peacock, 384 U.S. 80S (1966) . . .  21
Commonwealth of Pennsylvania v. Hill, 313 F. Supp.

1159 (W.D. Pa. 1970) ...............................................  21

in

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

Commissioner v. Duberstein, 363 U.S. 278 (1960) .. 35,
Cox v. Louisiana, 379 U.S. 536 (1965) .........................
Crawford v. United States, 212 U.S. 183 (1909) -----

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

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

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

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

affirmed 434 F. 2d 617 (5th Cir. 1970) ................... .
Green v. McDonnell Douglas Corporation, 463 F. 2d 

337 (8th Cir. 1972) ................................ 2,13,16,19,23,
Griggs v. Duke Power Co., 401 U.S. 424 

(1971) ..............................................16> 17, 23, 26, 27, 28,

Hill v. Commonwealth of Pennsylvania, 439 F. 2d 1016 
(3d Cir. 1971) cert, denied 404 U.S. 985 (1971) -----

Koen 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) ....................................................

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

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

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

(1939) ............................................................................
N.L.R.B. v. Great Dane Trailers, Inc., 388 U.S. 26 
* (1967) ...........................................................................35>

21
37
21
36

33

30

38

31

30

25

39

21

6

38

32
35

32

37



IV

N.L.R.B. v. Indiana Desk Co., 149 F. 2d 987 (7th Cir. 
1945) ........................................................................31-32,33

N.L.R.B. v. Jones & Laughlin Steel Corp., 301 U.S. 1
(1937) ............................................................................  35

N.L.R.B. v. Local Union 1229, I.B.E.W., 346 U.S. 464
(1953) ............................................................................  31

N.L.R.B. v. Longview Furniture Co., 206 F. 2d 274 
(4th Cir. 1953) .............................................................  33

N.L.R.B. v. Perfect Circle Co., 162 F. 2d 566 (7th Cir.
1947) ..............................................................................  32

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

Oneita Knitting Mills v. N.L.R.B., 375 F. 2d 385 (4th 
Cir. 1967) ..................................................................... 31,33

Radio Officers v. N.L.R.B., 347 U.S. 17 (1954) .......... 35
Rudolph v. United States, 370 U.S. 269 (1962) ...........  35

Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620
(1944) .................................................................  36

Schneider v. State, 30S U.S. 147 (1939) .....................  21
Southern Steamship Company v. N.L.R.B., 316 U.S. 31 

(1942) ...........................................................   32

Teamsters Local No. 357 v. N.L.R.B., 365 U.S. 667
(1961) ............................................................................  35

Tennant v. Peoria & Pekin Union Railway Co., 321
U.S. 29 (1944) ...............................................................  36

Tims v. Board of Education of McNeil, Arkansas, 452
F. 2d 551 (8th Cir. 1971) ............................................  19

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) ...........................................................  31

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

1969) ............................................................................. 31>33
W. T. Rawleigh Co. v. N.L.R.B., 190 F. 2d 832 (7th Cir.

1951) ..............................................................................  33

Statutes Cited

Title VII, Civil Rights Act of 1964, 42 U.S.C. §2000e, 
et seq.............................................................................passim

28 U.S.C. 1254 ...................................................................  2
National Labor Relations Act, § 10(c), 29 U.S.C.

§ 160(c) ....................................................................... 28>30

Miscellaneous Cited

110 Cong. Rec. 2560 ...........    20
110 Cong. Rec. 6549 .........................................................  20

110 Cong. Rec. 7212-14.....................................................  20

110 Cong. Rec. 8350 .........................................................  20
110 Cong. Rec. 11848 .......................................................  20

110 Cong. Rec. 15S66 .......................................................  20

110 Cong. Rec. 7213 .........................................................  23

110 Cong. Rec. 2567 .......................................................... 29

110 Cong. Rec. 2570 .........................................................  29

110 Cong. Rec. 2603 .........................................................  29

110 Cong. Rec. 2593 .........................................................  29

110 Cong. Rec. 2594 .........................................................  29

110 Cong. Rec. 2595 .........................................................  29

Rule 15b, Federal Rules of Civil Procedure.................  11

V



♦

1

*

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1972

No. 72-490

McDo n n e ll  doug las  c o r p o r a tio n ,
Petitioner,

v.

PERCY GREEN, 
Respondent.

On W rit of Certiorari to the United States Court of Appeals 
fo r 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 dissent filed on May 12, 1972, are re-



ported at 463 F. 2d 337 and are reprinted in Appendixes 
A and B (pp. A -l through A-3S) to the Petition for Writ 
of Certiorari filed in this case. The Memorandum Opinion 
of the United States District Court for the Eastern Dis­
trict of Missouri, filed on September 25, 1970, is reported 
at 318 F. Supp. 846 and is reprinted in Appendix D (pp. 
A-40 through A-49) to the Petition for Writ of Certiorari.

JURISDICTION

The original opinions of the three-judge panel of the 
Court of Appeals for the Eighth Circuit were filed on 
March 30, 1972. In response to petitioner’s timely Petition 
for Rehearing en banc, the original majority opinion was 
modified on May 12, 1972, and rehearing was denied with­
out prejudice to the right of either party to file a petition 
for rehearing addressed to the modified opinion. Petitioner 
then timely sought rehearing 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 
filed on September 23, 1972, and was granted on Decem­
ber 4, 1972. The jurisdiction of this Court rests on 28 
U.S.C. §1254(1).

QUESTIONS PRESENTED

1. Under Title VTI, is an employer’s right to refuse to 
hire a job applicant who has committed illegal and un­
protected acts against the employer nullified or circum­
scribed merely because the applicant is black!

2. In Civil Rights cases involving allegedly discrimina­
tory acts, should the defendant be precluded from ottering 
subjective evidence to explain his motivation for those 
acts?

—  3 —

STATUTES INVOLVED

This case involves the construction and interpretation 
of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 
§2000e, 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 

any individual, or otherwise to discriminate 
against any individual with respect to his com­
pensation, terms, conditions, or privileges of em­
ployment, because of such individual's race, color, 
religion, sex, or national origin.”  Civil Rights 
Act of 1964, §703(a)(l).

Section 2000e-2:
“ (j) 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 2000e-3:
“ (a) It shall be an unlawful employment practice 

for an employer to discriminate against any of his

i This case arose under Title VII as it existed prior to the 
1972 amendments (Public Law 92-261). It should be noted, how­
ever, that the 1972 amendments did not affect any of the stat­
utory provisions or legal issues involved in this action.



— 4 —

employees or applicants for employment . . . because 
he has opposed any practice made an unlawful em­
ployment practice by this subchapter, or because he 
has made a charge, testified, assisted or participated 
in any manner in an investigation, proceeding, or 
hearing under this subchapter.”  Civil Rights Act of 
1964, §704(a).

Section 2000e-5:
“ (g) If the court finds that the respondent has in­

tentionally engaged in or is intentionally engaging in 
an unlawful employment practice charged in the com­
plaint, the court may enjoin the respondent from en­
gaging in such unlawful employment practice, and 
order such affirmative action as may be appropriate, 
which may include reinstatement or hiring of employ­
ees, with or without back pay . . . No order of the 
court shall require . . .  the hiring, reinstatement, or 
promotion of an individual as an employee, or the 
payment to him of any back pay, if such individual 
. . .  was refused employment or advancement or was 
suspended or discharged for any reason other than 
discrimination on account of race, color, religion, sex 
or national origin or in violation of section 2000e-3(a) 
of this title.”  Civil Rights Act of 1964, §706(g).

Section 2000e-7:
“ Nothing in this subchapter shall be deemed to 

exempt or relieve any pci’son from any liability, duty, 
penalty, or punishment provided by any present or 
future law of any State or political subdivision of a 
State, other than any such law which purports to re­
quire or permit the doing’ of any act which would 
be an unlawful employment practice under this sub­
chapter.”  Civil Rights Act of 1964, §708.

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 
headquarters in St. Louis County, Missouri, where it em­
ploys in excess of 30,000 people.

This case involves an individual claim of discrimina­
tion filed by respondent Green against petitioner McDon­
nell claiming that McDonnell violated Title VII of the 
1964 Civil Rights Act (“ the A ct” ) when it refused to 
hire Green on July 26, 1965. This is not a class action or 
a “ pattern or practice suit”  but presents only the ques­
tion of whether McDonnell violated the Act in lefusing to 
hire Green. Respondent seeks reinstatement and back pay 
for himself as a result of petitioner’s allegedly wrongful 
rejection of his 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. 
8). At trial, however, respondent presented extensive evi­
dence in an attempt to establish that the decision was also 
motivated by the fact that respondent was black. In addi­
tion, Green also sought to prove that his previous layoff 
by McDonnell in 1964 was improperly motivated.

The District Court and the Court of Appeals properly 
held 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 

' review of that, issue. Hence, the layoff is not before this 
Court. However, because the issue of racial discrimination 
against Green is allegedly involved in the refusal to rehire 
him, we will undertake here to trace Green’s employment 
history with McDonnell, as found by the District Court. 
These findings were not disturbed by the Court of Appeals.



— G —

Events Leading Up to the 1964 Layoff

Respondent was originally hired by petitioner in 1956 
(A. 52). He was a qualified mechanic, a member of the 
union, and was rated average by his supervisors (A. 323, 
494). In 19G2, 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.” ) 
(A. 58, 270). One of respondent’s supervisors cautioned 
him against transferring out of his union status because 
of the danger of a layoff, the sacrifice of union seniority, 
and because the work in the department, connected as it 
was with the Gemini space project, was expected to de­
cline (A. 100-02, 270, 342). 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 for a position in the E.E.D. 
laboratory and was again cautioned about the hazards of 
such a move, which had increased because that department 
had neared completion of the Gemini simulator program 
(A. 62-63, 103-05, 272, 342). Nonetheless, he elected to take 
the job (A. 63) and was assigned work similar to that 
assigned to men with his grade and experience (A. 107, 
287, 346). The 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).

Green had been actively and publicly involved in civil 
rights activities and demonstrations since 1960 or 1961 and 
had received substantial publicity for some of his conduct 
(A. 69-70, 94, 208),2 but such pursuits had not interfered

2 Green is no stranger to litigation as a result of his civil 
rights activities. See c.g., ACTION v. Gannon, 450 F. 2d 1227 
(8th Cir. 1971), involving the disruption of religious services 
and threats to defile religious sacraments; and Kocn v. Long, 
302 F. Supp. 1383, 1395 (E.D. Mo. 1969), affirmed, 428 F. 2d 
876 (8th Cir. 1970), cert, denied 401 U.S. 923 (1971).

— 7 —

with his job and were not of any concern to McDonnell 
(A. 71, 239).

Some personnel in the E.E.D. were laid off in the spring 
of 1964, but respondent was not among them (A. 131-32, 
288). But in August of 1964, because of the reduced man­
power needs for the Gemini simulator program (A. 352), 
it became evident that more technicians had to be declared 
surplus, and the Company thereupon made reference to the 
standardized rating system known as the “ totem pole, 
which had been compiled in April (A. 292, 319) and which 
was used as a guide for pay and promotional purposes and 
as a job evaluator (A. 289, 292-93, 354, 382, 441). Eighteen 
men, including respondent, were declared surplus (A. 352). 
Six of the men on the surplus list were higher than re­
spondent on the totem pole (A. 353).

Efforts were made by petitioner, through its Personnel 
Department, to relocate these surplus men in various other 
departments to avoid having to lay them off (A. 110, 390, 
396). In that connection, a voluntary test was adminis­
tered to help determine the qualifications for men for 
higher job classifications which were open (A. I l l ,  394), 
but respondent refused to take the test (A. 355).3 On 
August 28, 1964, Green was laid off together with eight 
other employees, all of whom were white and one of whom 
ranked higher than Green on the “ totem pole”  (A. 112, 
292).

The “ Stall-in”  and “ Lock-in”

After his layoff, and while McDonnell was still in the 
process of looking for alternative employment for Green,4

3 No evidence was presented as to the content of the test 
and no claim has been asserted by Green that the test was dis­
criminatory.

4 This task was complicated by Green’s insistence that he 
receive preferential treatment and by his refusal to consider any 
job that involved a reduction in job status (A. 395-96, 444-45, 
483).



— 8 —

he actively participated in a “ stall-in”  demonstration in 
October 1964, in which respondent and other members of 
CORE intentionally stalled tlicir cars on the heavily trav­
eled main roads leading to petitioner’s plant at the time of 
a shift change (A. 399-403). The second demonstration 
led by respondent, in July of 1965, was at the Roberts 
Building, which housed some of McDonnell’s offices, and 
resulted in some of petitioner’s employees being locked in 
the building by the placing of a chain on the front door 
of the building (A. 132-33).

The “ stall-in”  was described in Petitioner’s Exhibit 
“ A ”  (A. 507-09, 329), and was not disputed by respond­
ent. Five teams, each consisting of four cars, were to “ tie 
up”  five main access roads to the McDonnell plant at the 
time of the morning rush hour; the drivers of the cars 
were instructed to line up next to one another so as com­
pletely to block intersections and roads (A. 510). They 
were instructed to stop their cars, turn off the engine, 
pull the emergency brake, raise all windows, lock the doors 
and remain in their cars until the police arrived (A. SOS). 
The plan was to have the cars remain in that position for 
one hour (A. 508).

Acting pursuant to this plan, a copy of which was in 
his possession, respondent drove his car onto Brown Road 
(a two-lane access road to the McDonnell plant) at ap­
proximately 7:00 a.m., at the start of the morning rush 
hour (A. 126-27). Respondent was aware ol the tiaffic 
problems that would result (A. 127). He' stopped his car 
on purpose with the intent to block traffic (A. 129-30). 
His car was in good running order but he refused to move 
it voluntarily (A. 129). Respondent’s car was towed by 
the police, and he was arrested for obstructing traffic, a 
misdemeanor under Missouri law (A. 131). Respondent 
pleaded guilty to the charge of obstructing traffic and 
was fined fifty dollars (A. 177).

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 ol 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 for a job at McDonnell as a mechanic, a posi­
tion for which he was qualified (A. 84). His 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 Sendees, who rejected it on the spot 
(A. 405, 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.

WThen 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

s 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.



—  10 —

race and because of his involvement in the civil rights 
movement. The EEOC found reasonable cause to believe 
that § 704(a) of the 1904 Civil Rights Act had been vio­
lated by McDonnell in refusing to employ Green because 
of his involvement in civil rights activities. The Commis­
sion made no finding with respect to the allegation prem­
ised on racial discrimination.

Pre-Trial Matters

Respondent’s original complaint filed in the District 
Court contained allegations only that McDonnell had “ in­
tentionally engaged in an unlawful employment practice 
by having denied plaintiff employment because he has 
opposed practices made unfair employment practices by 
the law governing equal employment opportunities”  (A. 
8-9). Although, as noted, respondent did not purport to 
bring a class action, he nevertheless embarked promptly 
on a massive discovery campaign seeking access to and 
reproduction of literally hundreds of thousands of Mc­
Donnell records. Green filed interrogatories (“ Set No. 
2” ) requesting information concerning a period nearly 
eight years long detailing the composition of McDonnell’s 
work 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 062,000 applications for employment, 110,000 
actual employment records in 1,400 job classifications (A. 
17). It was estimated that the compilation of such in- 
formation would require the services of three people 
working full-time for approximately three to six months 
(A. 17).

The District Court, on petitioner’s objections, held these 
interrogatories to be oppressive and irrelevant (A. 18), 
following which respondent filed a motion to produce

11 —

essentially the same documents and information (A. 18). 
The court held that certain documents relating to re­
spondent’s application and testing of applicants would be 
required to be produced, but sustained objections to the 
remaining requests on the grounds of relevancy, stating, 
inter alia-. “ There is no allegation in the complaint that 
the reason the plaintiff was not employed was because he 
is a Negro”  (A. 24).

The court held that good cause had not been shown for 
the production of over 70,000 files but did require the 
production of documents showing the requirements for 
initial employment, the written tests required, the oral 
tests or interviews required, those exempt from oral tests 
or interviews, the purpose of the tests or interviews, and 
the weight given to the rating resulting from such an 
interview or test as they existed in July 1965, when re­
spondent applied for employment (A. 25).

It was at that point, following the discovery orders, 
that respondent filed an amended complaint asserting, 
for the first time, discrimination on account of race in 
addition to discrimination based upon civil rights activi­
ties (A. 25). Petitioner moved to strike the racial allega­
tions on the ground that the EEOC had not made an 
affirmative finding of probable cause on that issue (A. 28). 
The District Court, relying on legislative history in a 
then-uncharted area, sustained the motion and held that 
an affirmative finding by the EEOC was a condition 
precedent to the institution of a federal court action (A. 
31). Sometime thereafter, a significant trend of decisional 
law developed reaching the opposite conclusion, and it is 
clear from the record that the District Court thereafter 
departed from its ruling, and that the parties actually 
tried the issue of racial discrimination by consent. Under 
Rule 15(b) of the Federal Rules of Civil Procedure, the



12 —

pleadings were thus to be treated as though the racial 
issue had been raised, and any error in striking the allega­
tions of the amended complaint was rendered harmless.6

The Trial

The case was tried on the merits for four days before 
the District Court sitting without a jury. The record is 
replete with evidence offered by respondent attempting to 
establish that both the layoff and the refusal to reliire 
were inspired by prejudice against him because of his 
race and color and because of his civil rights activities. 
Green filled the record with evidence concerning purported 
discrimination against him because of his attire (A. 59, 
62, 97-99, 368). lie also made repeated references to the 
racial composition of McDonnell’s work force and of de­
partments therein (A. 68-69, 72-73, 109-10, 156, 168, 297, 
362-61, 464-67, 578). The racial climate at Cape Kennedy 
was even interjected into the case (A. 153-54, 311). There 
were also various references to charges of racism filed 
by Green with numerous agencies, including the EEOC, 
the President’s Committee on Civil Rights, the Missouri 
Commission on Human Rights, the Department of Justice, 
the Department of the Navy, the Department of the De­
fense and the Office of Federal contract Compliance (A. 
SO-81, 228). And respondent’s counsel cross-examined Mc­
Donnell’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).

6 Petitioner supplied respondent with all of the relevant 
material sought to be discovered by the motion for production 
and the interrogatories (A. 232-33, 267), and respondent at trial 
withdrew his subpoena duces tecum for Krone (A. 267). Never­
theless, Green on his appeal urged error in various pre-trial 
discovery orders entered by the court. The Court of Appeals, 
however, did not reverse any of the District Court’s discretion­
ary discovery rulings, and Green has not sought review of 
those issues here.

—  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 his resourcefulness. With respect to the 
layoff 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.”  In stating the contentions 
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 his 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

Respondent appealed the District Court judgment to the 
Eighth Circuit, and oral arguments were heard by a three- 
judge panel on April 15, 1971. On March 30, 1972, each



— 14 —

member of the panel filed a separate opinion. The ma­
jority opinion, concurred in by two members of flic panel, 
remanded the case to the District Court for further pro­
ceedings in accordance with the rules promulgated by the 
opinion. The majority opinion held (1) that the District 
Court was correct in determining that the layoff claim 
was barred by the statute of limitations; (2), that the Dis­
trict Court properly determined that the stall-in and lock-in 
were not protected activities under Title VII; (3) that the 
court’s pre-trial order striking allegations of racial dis­
crimination from the complaint was erroneous; (4) that 
this error was not harmless; and (5) that McDonnell’s ad­
mitted reliance on the stall-in and lock-in were not suf­
ficient reasons to justify its refusal to hire Green because 
petitioner did not establish the adverse affect of these 
demonstrations on Green’s ability to perform the job ap­
plied for.

In remanding the refusal-to-hire aspect of the case to 
the District Court, the appellate court held that respond­
ent had made a prima facie case of racial discrimination 
by showing that he was black and qualified for the job. 
The burden, according to the majority, then passed to Mc­
Donnell to prove by “ objective evidence”  that the reasons 
given for not hiring Green would adversely affect his 
ability to function as a mechanic. The concurring opinion 
disputed the District Court’s finding that Green actively 
participated in the lock-in, and this observation was ap­
parently made a part of the majority opinion. The only 
effect of this holding is to question whether McDonnell’s 
connection of Green to the lock-in was accurate. The ma­
jority opinion of Court of Appeals did not set aside/the 
finding that McDonnell was in fact motivated by the stall- 
in and lock-in but merely questioned the extent of Green’s 
involvement in the lock-in and held that McDonnell was 
not entitled to rely on the lock-in.

15 —

Judge Harvey Johnson dissented from each of the por­
tions of the majority opinion which ruled adversely to 
petitioner. He stated that the majority had engaged in 
“ artificiality”  in its discussion of the lock-in issue but ob­
served that whether the stall-in is considered alone or in 
conjunction with the lock-in, the District Court was abso­
lutely correct in holding that McDonnell had a perfect 
right to reject respondent on the basis of the stall-in alone: 

“ I should not suppose that a Gallup Poll would be 
needed to show that any employer with self-respect 
and with concern for his relations with his other em­
ployees hardly would hire a workman, whether white 
or black, who had engaged in such an unlawful vin­
dictive misdeed against him, against his employees, 
and against his business being permitted to operate.”  
463 F. 2d at 348-49.

The dissent noted that a white person would not be en­
titled to a presumption of racial discrimination in identical 
circumstances and challenged the majority holding that a 
Negro applicant can make a prima facie case simply be­
cause he is black. Emphasizing that there was no sugges­
tion of any racial motivation in the record, t'he dissent 
characterized the majority opinion as follows:

“ The effect of the majority holding is, as I view 
it, that even though no racial motivation was in fact 
involved on the part of McDonnell, and even though 
its refusal to hire anyone who had engaged in such 
unlawful acts against it as were involved would not 
afford Green any less opportunity for employment than 
it did a white who had engaged in the same unlawful 
acts against it, McDonnell could nevertheless not re­
fuse to hire Green unless his presence in the plant 
would disrupt its operati ons. ’ ’ 463 F. 2d at 349-50.

The dissenting opinion took issue with the majority’s 
erection of preferential standards for minorities and with



— 16

its misreading of this Court’s opinion in Griggs v. Duke 
Power 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, in my opinion, only mean that McDonnell is 
being required to rehire Green.”  463 F. 2d at 350.

McDonnell filed a timely petition for rehearing and on 
May 12, 1972, the panel majority issued a “ revised opin­
ion”  containing some primarily linguistic modifications of 
Point V of the original opinion, to which Judge Johnsen 
filed a supplemental dissent. As authorized by the order 
denying the original rehearing petition (A. 49), McDonnell 
renewed its request for an en banc determination, which 
was denied by a 4-to-4 vote of the Court en banc on June 
28, 1972 (A. 49).7

7 After the Petition for Certiorari was filed here, counsel for 
Green submitted to the Court of Appeals a “statement” for 
counsel fees in connection with the appeal. On November 2, 
1972, the three-judge panel, over petitioner’s objections and 
■without a hearing, awarded respondent an attorney’s fee, with 
Judge Johnsen again dissenting. (See Docket Entries, A. 6.)

/

— 17 —

SUMMARY OF ARGUMENT

The Court of Appeals has drastically departed from the 
spirit and the letter of Title VII and has rewritten time- 
honored rules of procedure and evidence by announcing 
(1) 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 V II clearly require 
the complainant to prove that the employer’s challenged 
action was impermissibly tainted by discriminatory moti­
vation. The Eighth Circuit, however, has held that the 
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. It thus ig­
nores Title VII’s policy of color-blind equality" and re­
quires reverse discrimination.

The Court of Appeals has also held that once the burden 
has 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 
hire respondent was based upon respondent’s illegal and 
unprotected activities directed against petitioner’s opera­
tions and employees. These factors are racially neutral 
in conception and in operation, and do not create arbitrary 
racial barriers, but the Court of Appeals mistakenly relied 
upon Griggs v. Duke 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

quiremcnt is violative of §70G(g), which specifically sanc­
tions any employment decision made for any reason “ other 
than discrimination on account of race, color, religion, sex 
or national origin or in violation of §704(a).” The unlawful 
misconduct engaged in by Green provided 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.

Finally, the Eighth Circuit erred in discrediting McDon­
nell’s explanation of its motivation for rejecting Green’s 
application. The majority opinion held that “ subjective” 
evidence offered by an employer is essentially unworthy of 
belief, and that the employer must establish his defense by 
an objective demonstration. This holding runs afoul of the 
self-evident proposition that the employer is the best 
source of information as to the motivation for his decision 
and that he should, therefore, be allowed to testify on his 
own behalf as to why the action was taken. The trier of 
fact should be permitted to hear all the relevant evidence 
and determine the credibility of the witnesses and weigh 
their testimony. In a case in which a determination of 
motivation is critical, the fact finder cannot properly per-- 
foim his function without considering credible “ subjective” j
evidence.

/i

f

— 19

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.y Truax v. Raich, 239 U.S. 33 (1915); 
Tims v. Board of Education of McNeil, Arkansas, 452 F. 
2d 551 (8th Cir. 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 
he is black, in which case the employer will be presumed 
to have discriminated and will be 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 Court 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 he



— 20 —

lias boon denied dho job which continues to remain 
open, we think he presents a prima facie case of 
racial discrimination.”  463 F. 2d at 353.

The effect of this holding upon the instant case, and 
upon civil rights cases generally, would appear to be 
twofold. First, as a practical matter, it effectively shifts 
the burden of proof, in cases where a black man is in­
volved, from the plaintiff job applicant to the defendant 
employer. And second, it effectively discriminates in 
favor of a black man and against other job applicants. 
We submit that the Court of Appeals erred in promul­
gating this principle.

American jurisprudence has traditionally imposed upon 
the plaintiff the burden of proving his case. Nothing in 
the language or the legislative history of Title VII pro­
vides even the slightest intimation that any attempt was 
made by Congress in that statute to change the ordinary 
rules of proof. On the contrary, a Title VII action was 
expressly and consistently contemplated by Congress as 
proceeding “ in the usual manner”  with complainant hav­
ing the affirmative burden of proving discrimination. See 
110 Cong. Rec. 2560, 6549, 7212-14, 8350, 11848, 15866.8_  
In the context of this case, then, respondent was required 
by the Act- to establish by a preponderance of the evi­
dence that he was refused employment because of his 
race or color or because of his lawful opposition to Mc­
Donnell’s employment practices.

8 During the debates on the House floor, the following ex­
planation of the burden of proof was offered by one of the 
bill’s proponents: “The burden would be on the complainant to 
show that there had been discrimination . . . The burden all 
the way would be on those who alleged the discrimination. It 
is not the opposite; it is not a situation in which a charge can 
be brought against an employer and thereafter the employer 
would have to prove that he had not discriminated. He would 
not have a burden. It would be the other way around.” 110 
Cong. Rec. 2560.

21 —

The l>islrid. 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, bad failed to sustain his / 
burden of showing that McDonnell’s rejection of his em­
ployment application was motivated by respondent’s race 
or 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 shotved 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.0 The District Court’s findings were overwhelmingly 
supported by the evidence,9 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

9 Hence, both lower courts have properly conformed to this 
Court’s pronouncement in City of Greenwood v. Peacock, 384 
U.S. 808, 826 (1966): “ . . . [N]o federal law confers an abso­
lute right on private citizens—on civil rights advocates, on 
Negroes, or on anybody else—to obstruct a public street.”

See also, Cameron v. Johnson, 390 U.S. 611 (1968); Cox v. 
Louisiana, 379 U.S. 536, 554-55 (1965); Schneider v. State, 308 
U.S. 147, 160 (1939); Commonwealth of Pennsylvania v. Hill, 
313 F. Supp. 1159 (W.D. Pa. 1970) and Commonwealth of Penn­
sylvania v. Leonard, 315 F. Supp. 215 (W.D. Pa. 1970), both af­
firmed sub nom. Hill v. Commonwealth of Pennsylvania, 439 F. 
2d 1016 (3d Cir. 1971), cert, denied 404 U.S. 985 (1971).

10 See the discussion in Point II, infra, relative to the Court 
of Appeals’ criticism of the type of evidence offered by Mc­
Donnell.



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 Ms 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(j) (42 U.S.C. § 2000c- 
“ (j))> pointedly cautioned against preferential 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— 19 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 
prima facie case under Title VII, but the rejected whiles 
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, be­

— 23 —

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

In Griggs v. Duke Power 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, What 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. Rec. 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

11 A further problem arises by virtue of the fact that, while 
the Eighth Circuit’s rule is stated in terms of a “black man,” 
it must be remembered that the statute which it purportedly 
implements covers not only race and color but also sex, religion 
and national origin. The fallacy of the rulfe can be further 
demonstrated by postulating an application for employment by 
a qualified Baptist laborer. If he were refused a job, he could 
recover even though the employer was completely unaware of 
his religious affiliation. Similar incongruous results would 
eventuate in the case of women and, say, Canadians.

12 Emphasis ours here and throughout this brief except as 
otherwise noted.



- 2 4 -

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. 
Any 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 deal­
ing with minorities. Therefore, in order for a black 
plaintiff fo establish a prim a 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

the realization of the ideal of true equality. Because the 
Act was born of compromise, however, its reach 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 
Appeals’ burden-of-proof rule does not further Title VTI’s 
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 majority opinions both contained 
the statements that “the district court failed to consider 
whether the reasons given by McDonnell for not rehiring Green 
were related to the requirements of the job,”, and “the record 
shows that McDonnell has taken the position that it has the 
right under Title VIT to make subjective hiring judgments 
which do not necessarily rest upon the ability of the applicant 
to perform the work required.” 463 F. 2d at 342, 343, 352. 
This language seems to nullify the effect of the revised opinion’s 
deletion of that portion of Section V  containing an express re­
quirement for tying the reason to the job. See the supplemental 
dissent, 463 F. 2d at 355.



— 2d —

1. This Case Does Not Fall 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 
Power Co., 401 U.S. 424 (1971). With due deference to 
the 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 validity of two standardized 
employment practices, i.e., the requirement of a high 
school diploma and the successful completion of two gen­
eral aptitude tests. These were employer-erected barriers 
to 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. The 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

criminatory employment practices.”  Id. at 4.10. 1 lie 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 does 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 unanimous 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 be 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 Gi’een would have been denied employment 
by any self-respecting employer against whom they vTere 
directed. There is no inherent or subtle discrimination in 
a decision not to hire a saboteur, and thus the “ job-



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 VII. 
It deprives the employer of his legitimate right to make 
business decisions based upon valid, non-discriminatory 
business considerations. It further ignores the specific 
language of Section 706(g) of the Act, which provides 
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 than 
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 Co. 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

— 29 —

taken for “ cause.”  The Cellcr 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 
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 below by the Court of Appeals.

14 Sex was added later as a classification of discrimination.



30

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 Peti­
tioner’s Refusal to Hire Respondent.

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 Fibreboard v. N.L.R.B., 379 U.S. 203, 
217 (1961), 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 Avho had been 
discharged because of misconduct.”  Neither does Title 
VII 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 134 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

35 Even in public employment, it is clear that job perform­
ance need not be the sole yardstick for measuring the fitness 
of an employee. Bcilan v. Board of Education of Philadelphia 
357 U.S. 399 (1958).

/

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., 316 U.S. 461, 172 (1953). Percy Green’s 
behavior should not be required to be forgiven or forgot­
ten by McDonnell unless Title VII was designed to abro­
gate widely respected concepts of civility and morality. 
In Adler v. Board of Education, 312 U.S. 185, 192 (1952), 
the Court, quoting with approval from Garner v. Los An­
geles Board, 311 U.S. 716, 720 (1951), held that not even 
a public employer need blind itself to the trouble-making 
propensities of an employee:

“ We 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 loyalty 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. W. J. Ruscoe Co. v. N.L.R.B., 106 F. 2d 725 
(6th Cir. 1969); Victor Product Corporation v. N.L.R.B., 
208 F. 2d 831 (D.C. Cir. 1953); Oneita Knitting Mills v. 
N.L.R.B., 375 F. 2d 385 (1th Cir. 1967); N.L.R.B. v. Indi-



ana Desk Co., 140-P. 2d 987 (7th Cir. 1945); N.L.R.B. v. 
Perfect Circle Co., 162 F. 2d 566 (7th Cir. 1947).

Both the NLRA and the Civil Rights Act condone only 
that ty])e of demonstration or opposition which consists 
ot lawful behavior. In N.L.R.B. v. Pansteel Metallurgical 
Corp., 306 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 right 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 re­
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.
. . .W e  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. 1965); Buttny v. Smiley, 281 F. Supp.

280 (D. Colo. 1968); Esteban v. Central Missouri State 
Coll eye, 415 F. 2d 1077 (8th Cir. 1969) cert, denied 398 
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. He 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. Rawleigh Co. v. 
N.L.R.B., 190 F. 2d S32 (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 be 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-in16 to be justifiable disqualifying factors, whether

10 The concurring judge in the Court of Appeals thought it 
significant that Green did not personally chain the doors of the 
Roberts Building during the “lock-in.” The evidence is clear, 
however, that he was in charge of the demonstration and had 
advance notice of the plan to chain the door, in which he ac­
quiesced. Those who participate in illegal protest activities and 
who actively cooperate with offenders are equally to blame and 
must suffer the consequences. II'. 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 mistaken as to Green’s 
role in the lock-in, such, a misconception would not have tar­
nished its perfectly valid employment decision based on the 
stall-in. The record is clear that the individuals who made the 
decision had been advised that Green was the leader of the 
lock-in demonstration (A. 404), and their good-faith reliance 
on this information— even if mistaken in fact— would not con­
stitute a Title VII violation.



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 Rights 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 unworthy of credence in the context of a refusal 
to hire, and characterized it, and employer evidence gen­
erally, as “ pretexfual.”  The effect of the opinion, as the 
dissenting judge interpreted it, is to instruct the trier of 
fact 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 .LA., Mc­
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

k — 34 — 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. 26, 34 (1967). 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 or other forbidden prejudices. Associated Press v. 
N.L.R.B., 301 U.S. 103, 132 (1937); Radio Officers v. N.L. 
R.B., 347 U.S. 17 (1954); N.L.R.B. v. Jones & Laughlin 
Steel Corp., 301 U.S. 1, 46 (1937). Once a prima 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. N.L.R.B. v. Brown, 380 U.S. 278, 288 (1965); Radio 
Officers v. N.L.R.B., supra; Teamsters Local No. 357 v. 
N.L.R.B., 365 U.S. 667, 675 (1961). 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 
in a wide variety of legal actions, the actor’s intent or 
motivation is outcome-determinative. Nonetheless, in anti­
trust,17 tax,18 19 and other civil cases,10 as well as in crim­

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

18 Commissioner v. Dubcrstcin. 363 U.S. 278 (I960) - RudolUi 
v. United States, 370 U.S. 269 (1962). ’ ”

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



inal proceedings,20 this Court has 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 his testimony. For 
example in Wallace v. United States, 162 U.S. 466, 477 
(1896), the Court stated as follows:

“ It 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 VII case. Xo court had so held until the Eighth 
Circuit decision under review here. While the Court of 
Appeals’ rule ostensibly referred only to the “ 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 weight rather than admissibility, the Eighth Cir­
cuit has disregarded the well-established doctrine that the task 
of weighing the evidence properly belongs to the district 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 Life Insurance Company v. Ward, 140 U.S. 76 
(1891).

— 37 — ■

The apparent thesis underlying the 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, modem 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 Dane 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 might carry the 
day. In Commissioner v. Duberstein, 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 VII 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 
nature 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 If we repose such confidence in administrative agencies 
and lay jurors, certainly at least the same respect must be paid 
to federal district judges.



<

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 sua 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 Cliidester School District, 
448 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. 
Nor 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

— 38 — — 39 —

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

Like the dissenting judge below, petitioner is at a loss 
to 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 the 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 
standard covering the situation? Common sense confirms 
the existence of such policies but also demonstrates the 
needlessness of reducing them to writing and the futility 
of attempting to 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 testimonv 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 right result. The Court of Appeals misconstrued the 
statute and this Court’s opinion in Griggs, improperly 
assigned the burden of proof and erroneously restricted 
the evidence which could be considered in explanation of 
petitioner’s actions.

i



Accordingly, the opinion and judgment of the United 
States Court of Appeals tor the Eighth Circuit should be 
\ acated and the cause remanded to that Court with in­
structions to enter an order affirming the judgment of 
the District Court.

Respectfully submitted,

R. H. McROBERTS
j

VERYL L. RIDDLE

THOMAS C. WALSH 
500 North Broadway 

St. Louis, Missouri 63102 
Attorneys for Petitioner

BRYAN, CAVE, McPHEETERS &
McROBERTS 

Of Counsel