In Defense of McDonnell Douglas: The Domination of Title VII by the At-Will Employment Doctrine

St. John's Law Review Volume 89 Number 2 Volume 89, Summer/Fall 2015, Numbers 2 & 3 Article 5 April 2016 In Defense of McDonnell Douglas: The Domination of Title VII by the At-Will Employment Doctrine Chuck Henson Follow this and additional works at: https://scholarship.law.stjohns.edu/lawreview Part of the Civil Rights and Discrimination Commons Recommended Citation Chuck Henson (2015) "In Defense of McDonnell Douglas: The Domination of Title VII by the At-Will Employment Doctrine," St. John's Law Review: Vol. 89 : No. 2 , Article 5. Available at: https://scholarship.law.stjohns.edu/lawreview/vol89/iss2/5 This Symposium is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in St. John's Law Review by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact . 37692-stj_89-2-3 Sheet No. 82 Side A 04/08/2016 13:04:55 FINAL_HENSON 4/6/2016 4:07 PM IN DEFENSE OF MCDONNELL DOUGLAS: THE DOMINATION OF TITLE VII BY THE AT-WILL EMPLOYMENT DOCTRINE CHUCK HENSON† INTRODUCTION It has been said that within Title VII of the Civil Rights Act of 1964, Congress gave the moral principle of “equality” a foundation in national law.1 Taken as a statement of Title VII’s purpose, such purpose anchors the persistent belief that Congress intended Title VII as a radical and permanent departure from the past. De jure and de facto discrimination and the rule of employment-at-will represent the past. Title VII C M Y K 04/08/2016 13:04:55 551 37692-stj_89-2-3 Sheet No. 82 Side A † Interim Vice Chancellor, Division of Inclusion, Diversity and Equity, University of Missouri School of Law; Trial Practice Professor of Law, University of Missouri School of Law; Senior Fellow, Center for the Study of Dispute Resolution, University of Missouri School of Law; J.D., Georgetown University Law Center, 1990; B.A., Yale University, 1987. The author would like to give a special thank you to Professor William R. Corbett for his thoughtful commentary and whose article, The “Fall” of Summers, The Rise of “Pretext Plus,” and the Escalating Subordination of Federal Employment Discrimination Law to Employment at Will: Lessons from McKennon and Hicks, 30 GA. L. REV. 305 (1996), helped inspire this Article. Additionally, the author gives many thanks for the encouragement, guidance, and editorial advice of Dean Rafael Gely, Professor Miriam Cherry, Professor David Mitchell, Dean Rigel Oliveri, and Professor Joshua D. Hawley; thanks for the research assistance of Scott Smithson and Chris Lesinski; and thanks to the John W. Cowden Faculty Research Fellowship and the W. Dudley McCarter Faculty Research Fellowship for supporting this endeavor. Finally, the author thanks Renee Elaine Henson for her constant support and Paris Olivia Henson for giving him a reason to continue to confront the monsters hiding under the bed. 1 Robert Brookins, Hicks, Lies, and Ideology: The Wages of Sin Is Now Exculpation, 28 CREIGHTON L. REV. 939, 940 (1994) (“Title VII molded the basic moral principle of equal treatment into a national policy to eliminate employment discrimination.”); Ann C. McGinley, Credulous Courts and the Tortured Trilogy: The Improper Use of Summary Judgment in Title VII and ADEA Cases, 34 B.C. L. REV. 203, 210 (1993) (“In passing Title VII of the Civil Rights Act, Congress stressed that equal employment opportunity is a basic right in this country. The legislature noted that the other civil rights the Act guaranteed would be meaningless without the right to ‘gain the economic wherewithal to enjoy or properly utilize them.’ ” (quoting H.R. REP. NO. 88-914 (1964))). 37692-stj_89-2-3 Sheet No. 82 Side B 04/08/2016 13:04:55 FINAL_HENSON 552 4/6/2016 4:07 PM ST. JOHN’S LAW REVIEW [Vol. 89:551 represents the achievement, or at a minimum, the path to the colorblind meritocracy envisioned at the time of its creation by dealing with chronic issues of unemployment, underemployment, Title VII, segregation in employment, and unequal pay.2 however, has not served this purpose.3 Those who believe that Congress had such a purpose for Title VII blame McDonnell Douglas Corp. v. Green4 (“McDonnell Douglas II”) and the Supreme Court for emasculating Title VII in disparate treatment cases.5 McDonnell Douglas II, however, is not responsible for the 04/08/2016 13:04:55 C M Y K 37692-stj_89-2-3 Sheet No. 82 Side B 2 Referring to the proposed Title VII of the Civil Rights Act, key legislators recognized that voting rights, school desegregation, and the desegregation of public accommodations had little meaning in the absence of jobs: The right to vote, however, does not have much meaning on an empty stomach. The impetus to achieve excellence in education is lacking if gainful employment is closed to the graduate. The opportunity to enter a restaurant or hotel is a shallow victory where one’s pockets are empty. The principle of equal treatment under law can have little meaning if in practice its benefits are denied the citizen. H.R. REP. NO. 88-914, pt. 2, at 26 (1963). Unemployment, employment by occupation, and wage statistics showed nonwhite unemployment at more than twice the rate of white unemployment. Id. at 27–28. 3 For example, in 1979, the continuing employment disparity led the United States Supreme Court to describe the purpose of Title VII as opening to blacks previously foreclosed employment opportunities, which was a foundation to the Court’s decision to permit short-term private affirmative action in United Steelworkers of America v. Weber, 443 U.S. 193, 194 (1979). The Court in Weber specifically noted that the unemployment rates had not changed since Title VII became law in 1964: “The problem that Congress addressed in 1964 remains with us. In 1962, the nonwhite unemployment rate was 124% higher than the white rate.” Id. at 204 n.4. “In 1978, the black unemployment rate was 129% higher.” Id. Historically, black unemployment rates have continued to be twice as high as white unemployment rates. See U.S. Dep’t of Labor, Data Retrieval: Labor Force Statistics (CPS), BUREAU LAB. STAT., http://www.bls.gov/webapps/legacy/cpsatab2.htm (check box for “unemployment rate” under “not seasonally adjusted” column for the “White” and “Black or African American” subcategories; then select “Retrieve data”) (last modified July 8, 2015). 4 411 U.S. 792 (1973). 5 The difficulty in proving disparate treatment is seen as a problem of interpretation rather than a fundamental problem with Title VII’s structure. See also Judith Olans Brown et al., Some Thoughts About Social Perception and Employment Discrimination Law: A Modest Proposal for Reopening the Judicial Dialogue, 46 EMORY L.J. 1487, 1487–88 (1997) (“Most recently, in 1992, we demonstrated how the federal courts, and particularly the Supreme Court, had significantly weakened Title VII of the Civil Rights Act of 1964 by construing procedural rul (...truncated)