FURNCO CONSTRUCTION CORP. v. WATERS ET AL.
No. 77-369
Supreme Court of the United States
Argued April 17, 1978—Decided June 29, 1978
438 U.S. 567
Joel H. Kaplan argued the cause for petitioner. With him on the briefs were Zachary D. Fasman and Alvin M. Glick.
Judson H. Miner argued the cause for respondents. With him on the brief were Charles Barnhill, Jr., Jack Greenberg, James M. Nabrit III, O. Peter Sherwood, Eric Schnapper, and Barry L. Goldstein.*
*Briefs of amici curiae were filed by Solicitor General McCree, Assistant Attorney General Days, Brian K. Landsberg, Robert J. Reinstein, and
MR. JUSTICE REHNQUIST delivered the opinion of the Court.
Respondents are three black bricklayers who sought employment with petitioner Furnco Construction Corp. Two of the three were never offered employment. The third was employed only long after he initially applied. Upon adverse findings entered after a bench trial, the District Court for the Northern District of Illinois held that respondents had not proved a claim under either the “disparate treatment” theory of McDonnell Douglas Corp. v. Green, 411 U. S. 792 (1973), or the “disparate impact” theory of Griggs v. Duke Power Co., 401 U. S. 424 (1971). The Court of Appeals for the Seventh Circuit, concluding that under McDonnell Douglas respondents had made out a prima facie case which had not been effectively rebutted, reversed the judgment of the District Court. 551 F. 2d 1085 (1977). We granted certiorari to consider important questions raised by this case regarding the exact scope of the prima facie case under McDonnell Douglas and the nature of the evidence necessary to rebut such a case. 434 U. S. 996 (1977). Having concluded that the Court of Appeals erred in its treatment of the latter question, we reverse and remand to that court for further proceedings consistent with this opinion.
I
A few facts in this case are not in serious dispute. Petitioner Furnco, an employer within the meaning of
Many of the remaining facts found by the District Court and the inferences to be drawn therefrom are in some dispute between the parties, but none was expressly found by the Court of Appeals to be clearly erroneous. The District Court elaborated at some length as to the “critical” necessity of insuring that only experienced and highly qualified fire-
Because of the above considerations and following the established practice in the industry, most of the firebricklayers hired by Dacies were persons known by him to be experienced and competent in this type of work. The others were hired after being recommended as skilled in this type of work by his general foreman, an employee (a black), another Furnco superintendent in the area, and Furnco‘s General Manager John Wright. Wright had not only instructed Dacies to employ, as far as possible, at least 16% black bricklayers, a policy due to Furnco‘s self-imposed affirmative-action plan to insure that black bricklayers were employed by Furnco in Cook County in numbers substantially in excess of their percentage in the local union, but he had also recommended, in an effort to show good faith, that Dacies hire several specific bricklayers, who had previously filed a discrimination suit against Furnco, negotiations for the settlement of which had only recently broken down, see n. 3, supra.
From these factual findings, the District Court concluded that respondents had failed to make out a Title VII claim under the doctrine of Griggs v. Duke Power Co., 401 U. S. 424 (1971). Furnco‘s policy of not hiring at the gate was racially neutral on its face and there was no showing that it had a disproportionate impact or effect. App. to Pet. for Cert. A20-A21. It also held that respondents had failed to
“Not only have Plaintiffs entirely failed to establish that Furnco‘s employment practices on the Interlake job discriminated against them on the basis of race or constituted retaliatory conduct but Defendant has proven what it was not required to. By its cross-examination and direct evidence, Furnco has proven beyond all reasonable doubt that it did not engage in either racial discrimination or retaliatory conduct in its employment practices in regard to bricklayers on the Interlake job.”4 Id., at A22.
The Court of Appeals reversed, holding that respondents had made out a prima facie case under McDonnell Douglas, supra, at 802, which Furnco had not effectively rebutted. Because of the “historical inequality of treatment of black workers”5 and the fact that the record failed to reveal that
A
We agree with the Court of Appeals that the proper approach was the analysis contained in McDonnell Douglas, supra.7 We also think the Court of Appeals was justified in concluding that as a matter of law respondents made out a prima facie case of discrimination under McDonnell Douglas. In that case we held that a plaintiff could make out a prima facie claim by showing
“(i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant‘s qualifications.” 411 U. S., at 802 (footnote omitted).
This, of course, was not intended to be an inflexible rule, as the Court went on to note that “[t]he facts necessarily will vary in Title VII cases, and the specification... of the prima facie proof required from respondent is not necessarily appli-
B
We think the Court of Appeals went awry, however, in apparently equating a prima facie showing under McDonnell Douglas with an ultimate finding of fact as to discriminatory refusal to hire under Title VII; the two are quite different and that difference has a direct bearing on the proper resolution of this case. The Court of Appeals, as we read its opinion, thought Furnco‘s hiring procedures not only must be reasonably related to the achievement of some legitimate purpose, but also must be the method which allows the employer to consider the qualifications of the largest number of minority applicants. We think the imposition of that second
The central focus of the inquiry in a case such as this is always whether the employer is treating “some people less favorably than others because of their race, color, religion, sex, or national origin.” Teamsters v. United States, supra, at 335 n. 15. The method suggested in McDonnell Douglas for pursuing this inquiry, however, was never intended to be rigid, mechanized, or ritualistic. Rather, it is merely a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination. A prima facie case under McDonnell Douglas raises an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors. See Teamsters v. United States, supra, at 358 n. 44. And we are willing to presume this largely because we know from our experience that more often than not people do not act in a totally arbitrary manner, without any underlying reasons, especially in a business setting. Thus, when all legitimate reasons for rejecting an applicant have been eliminated as possible reasons for the employer‘s actions, it is more likely than not the employer, who we generally assume acts only with some reason, based his decision on an impermissible consideration such as race.
When the prima facie case is understood in the light of the opinion in McDonnell Douglas, it is apparent that the burden which shifts to the employer is merely that of proving that he based his employment decision on a legitimate consideration, and not an illegitimate one such as race. To prove that, he need not prove that he pursued the course which would both enable him to achieve his own business goal and allow him to consider the most employment applications. Title VII prohibits him from having as a goal a work force selected by any proscribed discriminatory practice, but it does not impose a duty to adopt a hiring procedure that maximizes hiring of
The dangers of embarking on a course such as that charted by the Court of Appeals here, where the court requires businesses to adopt what it perceives to be the “best” hiring procedures, are nowhere more evident than in the record of this very case. Not only does the record not reveal that the court‘s suggested hiring procedure would work satisfactorily, but also there is nothing in the record to indicate that it would be any less “haphazard, arbitrary, and subjective” than Furnco‘s method, which the Court of Appeals criticized as deficient for exactly those reasons. Courts are generally less competent than employers to restructure business practices, and unless mandated to do so by Congress they should not attempt it.
This is not to say, of course, that proof of a justification which is reasonably related to the achievement of some legitimate goal necessarily ends the inquiry. The plaintiff must be given the opportunity to introduce evidence that the proffered justification is merely a pretext for discrimination. And as we noted in McDonnell Douglas, supra, at 804-805, this evidence might take a variety of forms. But the Court of Appeals, although stating its disagreement with the District Court‘s conclusion that the employer‘s hiring practices were a “legitimate, nondiscriminatory reason” for refusing to hire respondents, premised its disagreement on a view which we have discussed and rejected above. It did not conclude that the practices were a pretext for discrimination, but only that different practices would have enabled the employer to at least consider, and perhaps to hire, more minority employees. But courts may not impose such a remedy on an employer at least until a violation of Title VII has been proved, and here none had been under the reasoning of either the District Court or the Court of Appeals.
The Court of Appeals was also critical of petitioner‘s effort to employ statistics in this type of case. While the matter is not free from doubt, it appears that the court thought that once a McDonnell Douglas prima facie showing had been made out, statistics of a racially balanced work force were totally irrelevant to the question of motive. See 551 F. 2d, at 1089. That would undoubtedly be a correct view of the matter if the McDonnell Douglas prima facie showing were the equivalent of an ultimate finding by the trier of fact that the original rejection of the applicant was racially motivated: A racially balanced work force cannot immunize an employer from liability for specific acts of discrimination. As we said in Teamsters v. United States, 431 U. S., at 341-342:
“[T]he District Court and the Court of Appeals found upon substantial evidence that the company had engaged in a course of discrimination that continued well after the effective date of Title VII. The company‘s later changes in its hiring and promotion policies could be of little comfort to the victims of the earlier post-Act discrimination, and could not erase its previous illegal conduct or its obligation to afford relief to those who suffered because of it.”
See also Albemarle Paper Co. v. Moody, 422 U. S. 405, 412-413 (1975). It is clear beyond cavil that the obligation imposed by Title VII is to provide an equal opportunity for each applicant regardless of race, without regard to whether members of the applicant‘s race are already proportionately represented in the work force. See Griggs v. Duke Power Co., 401 U. S., at 430; McDonald v. Santa Fe Trail Transportation Co., 427 U. S. 273, 279 (1976).
A McDonnell Douglas prima facie showing is not the equivalent of a factual finding of discrimination, however. Rather, it is simply proof of actions taken by the employer from which
III
The parties also press upon the Court a large number of alternative theories of liability and defense,9 none of which were directly addressed by the Court of Appeals as we read its opinion. Given the present posture of this case, however,
It is so ordered.
MR. JUSTICE MARSHALL, with whom MR. JUSTICE BRENNAN joins, concurring in part and dissenting in part.
It is well established under Title VII that claims of employment discrimination because of race may arise in two different
Under McDonnell Douglas, a plaintiff establishes a prima facie case of employment discrimination through disparate treatment by showing
“(i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant‘s qualifications.” Id., at 802 (footnote omitted).
Once a plaintiff has made out this prima facie case, the burden shifts to the employer who must prove that he had a “legitimate, nondiscriminatory reason for the [plaintiff‘s] rejection.” Ibid.
The Court of Appeals properly held that respondents had made out a prima facie case of employment discrimination under McDonnell Douglas. Once respondents had established their prima facie case, the question for the court was then whether petitioner had carried its burden of proving that respondents were rejected on the basis of legitimate nondiscriminatory considerations. The court, however, failed properly to address that question and instead focused on what other hiring practices petitioner might employ. I therefore agree with the Court that we must remand the case to the Court of Appeals so that it can address, under the appropriate standards, whether petitioner had rebutted respondents’ prima facie showing of disparate treatment. I also agree that on remand
Where the Title VII claim is that a facially neutral employment practice actually falls more harshly on one racial group, thus having a disparate impact on that group, our cases establish a different way of proving the claim. See, e. g., Teamsters, supra, at 336 n. 15, 349; Dothard v. Rawlinson, 433 U. S. 321, 329 (1977); General Electric Co. v. Gilbert, 429 U. S. 125, 137 (1976); Albemarle Paper Co. v. Moody, 422 U. S. 405, 422, 425 (1975); Griggs v. Duke Power Co., 401 U. S. 424, 430-432 (1971). As set out by the Court in Griggs v. Duke Power Co., to establish a prima facie case on a disparate-impact claim, a plaintiff need not show that the employer had a discriminatory intent but need only demonstrate that a particular practice in actuality “operates to exclude Negroes.” Id., at 431.
Once the plaintiff has established the disparate impact of the practice, the burden shifts to the employer to show that the practice has “a manifest relationship to the employment in question.” Id., at 432. The “touchstone is business necessity,” id., at 431, and the practice “must be shown to be necessary to safe and efficient job performance to survive a Title VII challenge.” Dothard v. Rawlinson, supra, at 332 n. 14. Under this principle, a practice of limiting jobs to those with prior experience working in an industry or for a particular person, or to those who hear about jobs by word of mouth would be invalid if the practice in actuality impacts more harshly on a group protected under Title VII, unless the practice can be justified by business necessity.
There is nothing in today‘s opinion that is inconsistent with this approach or with our prior decisions. I must dissent, however, from the Court‘s apparent decision, see ante, at 575, to foreclose on remand further litigation on the Griggs question of whether petitioner‘s hiring practices had a disparate impact.
It is clear that an employer cannot be relieved of responsibility for past discriminatory practices merely by undertaking affirmative action to obtain proportional representation in his work force. As the Court said in Teamsters, and reaffirms today, a “company‘s later changes in its hiring and promotion policies could be of little comfort to the victims of the earlier... discrimination, and could not erase its previous illegal conduct or its obligation to afford relief to those who suffered because of it.” 431 U. S., at 341-342; ante, at 579. Therefore, it is at least an open question whether the hiring of workers primarily from a list of past employees would, under Griggs, violate Title VII where the list contains no Negroes but the company uses additional methods of hiring to increase the numbers of Negroes hired.*
The Court today apparently assumes that the Court of Appeals affirmed the District Court‘s findings that petitioner‘s hiring practice had no disparate impact. I cannot agree with that assumption. Because the Court of Appeals disposed of this case under the McDonnell Douglas analysis, it had no occasion to address those findings of the District Court pertaining to disparate impact. Although the Court of Appeals did discuss Griggs in its opinion, 551 F. 2d 1085, 1089-1090 (1977), as I read that discussion the court was merely rejecting petitioner‘s argument that it could defeat respondents’