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Think Twice Before Firing

A recent circuit court case proves that race should still be on the mind of conscious employers.

SCOTUS Affirmative Action
(Bill Clark/CQ-Roll Call, Inc via Getty Images)

Every conservative in Washington has read, and makes a point of telling you they've read, Christopher Caldwell's The Age of Entitlement. I won't rehash the whole book here, but Caldwell argues that the Civil Rights Act of 1964 and the bureaucracy that exists to enforce it create a "rival constitution" to the actual written Constitution of the United States. That parallel constitutional order is not just a product of the law itself, he argues, but the jurisprudence that has interpreted and applied the law. Courts' interpretation of Title VII, for example, yielded the concept of a "hostile work environment," and led risk-averse companies to adopt zero-tolerance policies on "offensive speech," essentially repealing the First Amendment in workplaces, where Americans might spend a third of their adult lives.

Another effect of courts' interpretation of Title VII, the Civil Rights Act's employment-discrimination provision, has been to micromanage corporations' hiring and firing practices. That pattern of micromanagement has survived the resolution of the problem the law was intended to solve, namely, racial segregation in the South. Today the threat of litigation has led corporations to adopt affirmative action measures that serve a similar purpose to the zero-tolerance policies used to avoid hostile-workplace suits. Hiring a particular white applicant who happens to be marginally more qualified than a particular minority applicant has a built-in "cost"—the chance that it will be misconstrued as discriminatory in an expensive, unflattering lawsuit. A corporation, acting rationally, may choose to hire less qualified applicants if the costs of failing to do so, in terms of legal exposure, exceed the benefit of hiring a more qualified group of applicants.


There is another dimension to this problem. In Title VII lawsuits, a given applicant or employee denied a job or a promotion will often cite, and courts will often accept, his educational credentials as evidence of his qualifications for the job he was denied. That makes sense if educational attainment is a reasonable proxy for a candidate's aptitude for the position—ceteris paribus, you'd figure an engineering graduate from MIT is a strong candidate to be an engineering technician. But what if the institutions of higher education in question have made admissions decisions on the basis of race and sex, diluted their curricula, and inflated their grades to ensure an equitable matriculation rate? What happens when educational attainment isn't prima facie evidence of a person's qualifications?

Richard Hanania highlighted a Sixth Circuit Court of Appeals ruling from earlier this week that illustrates this point. The Sixth Circuit reviewed a Title VII case filed in and dismissed by a district court. A black employee, Patricia Levine, had accused the United States Postal Service of discrimination for denying her a promotion to a customer services supervisor position. The job, she argued, was given to a less-qualified white employee, Kathleen Peare. Levine's attorneys highlighted that she had a master's degree in business administration, while her white competitor never went to college. In response, USPS argued that Peare was a better disciplinarian, had more supervisory experience, and had a better interview than did Levine.

Title VII claims such as Levine's are resolved following a burden-shifting framework. When a claim of employment discrimination is brought before a court, the burden of proof passes from the plaintiff, to demonstrate "prima facie evidence" of discrimination, to the defendant, who has to demonstrate a non-invidious justification for its hiring or promotion decision, and finally back to the plaintiff to prove the reasons proffered by the defendant were a pretext for discrimination.

Levine's case followed this three-step process. In 2020, the Equal Employment Opportunity Commission issued Levine a notice of her right to sue, within the prescribed sixty-day window. Levine cleared the low bar required to establish a prima facie Title VII violation—she, an employee in a protected class, was treated adversely compared to a similar employee in a non-protected class—and so the court proceeded to the second step of the test, namely, whether USPS had a legitimate, non-discriminatory reason for having promoted Peare, the non-protected candidate, instead of Levine. USPS insisted that it promoted Peare for her supervisory experience and superior interview, which satisfied the district court as legitimate. Last, they turned to the third prong of the test, and asked Levine to present evidence that the justification provided was a pretext for racial discrimination. The court was not satisfied with the evidence presented, and dismissed the claim.

The Sixth Circuit, however, found Levine had provided evidence she was "better qualified than Peare based on her education, experience, and professional accomplishments," reversed the lower court's dismissal, and remanded the case for trial in light of its ruling. The circuit court's own test for Title VII cases, laid out in the 2010 case Bartlett v. Gates, holds that for a claim of promotion discrimination to survive summary judgment, the plaintiff must have been the "plainly superior candidate, such that no reasonable employer would have chosen" the other candidate over the plaintiff, which the Sixth Circuit allows was a possible conclusion from Levine's presentation of the evidence.


In response to the defense's claims that Peare had a superior interview, the Sixth Circuit cited the Supreme Court in White that "any evaluation of [plaintiff's] interview performance is an inherently subjective determination, and thus easily susceptible to manipulation in order to mask the interviewer's true reasons for making the promotion decision," and should not be considered uncritically, "since the very issue in dispute is whether the reasons given by these interviewers for their decision should be believed." It would, the White Court argued, be inappropriate to assume employers' "own subjective perceptions of [plaintiff] were accurate."

American civil rights law leads inevitably to this kind of armchair psychoanalysis, tasking courts with plumbing the depths of a defendant's motives in hiring or firing a particular employee. Did you fire Jim because he showed up late to work, or because he was black? Did you promote Jane because she has years of experience, or because she was white?

When you read Levine's case, it is easy to see why she may have been miffed. She did have years more experience at USPS than did Peare, much of the relevant experience required, and only once declined a job detail, when her daughter was getting surgery for a brain tumor. But her superior educational attainment is not dispositive proof that she is the superior candidate, particularly in an era where many schools' admissions decisions, grading, and curricula are informed by racial and sexual politics. That doesn't mean Levine was necessarily a beneficiary of affirmative action, of course, but one argument against the policy is precisely the cloud of suspicion it places over the validity of educational attainment.

In Texas Department of Community Affairs v. Burdine, the case that created today's burden-shifting framework, the Supreme Court rejected the idea that an employer must "hire the minority or female applicant whenever that person's objective qualifications were equal to those of a white male applicant." The Sixth Circuit's ruling seems, unfortunately, to suggest the opposite.