Page 365 - Discrimination at Work The Psychological and Organizational Bases

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prejudice or stereotypes, known or unknown to him, but he would not have
exhibited a conscious intention to discriminate. The legal outcome would
not be as straightforward. When the behaviors may reflect an unconscious
or ambiguous intent to discriminate, the legal system may not recognize
them as constituting illegal discrimination (Krieger, 1995).
Most cases do not involve direct evidence of illegal discrimination. Be­
cause of this, in the 1970s and early 1980s (and refined in the 1990s), the
courts fashioned an indirect method of proving hostility or animus: the
McDonnell Douglas/Burdine/Hicks framework (McDonnell Douglas
Corp. v. Green, 1973; Texas Department of Community Affairs v. Burdine,
1981; St. Mary's Honor Center v. Hicks, 1993). Under this method of proof,
the focus shifted to causation as a proxy for identifying bad intent.
The McDonnell Douglas/Burdine/Hicks framework provides a well-
known, burden-shifting scheme in which the plaintiff must first establish
a prima facie case, which creates a presumption of illegal discrimination
(McDonnell Douglas Corp. v. Green, 1973). The burden then shifts to the
employer to "articulate some legitimate, non-discriminatory reason" for
the conduct toward the plaintiff (McDonnell Douglas Corp. v. Green, 1973,
p. 802; Texas Department of Community Affairs v. Burdine, 1981). In other
words, the employer ideally would reveal the rational reason for the con­
scious choice of behavior exhibited toward the plaintiffs. If the employer
meets this burden, then the presumption is overcome and the plaintiff, by
a preponderance of the evidence, must establish that discrimination was
the "real" reason for his or her treatment—that the defendant's proffered
reason is a pretext for discrimination (McDonnell Douglas Corp. v. Green,
1973). Evidence that the employer's reason is a lie, or is not the "real" reason
for the behavior, may help to create the inference of illegal discrimination,
but need not be sufficient (St. Mary's Honor Center v. Hicks, 1993). Addi­
tional evidence—typically in the form of comparative evidence—may be
needed as well. Comparative evidence refers to evidence of how mem­
bers of the plaintiff's protected class are treated vis-a-vis similarly situated
members outside of the plaintiff's class.
Reconsider the Slack case. Without statements reflecting that Pohasky
selected the Black women because of their race, there is no direct evi­
dence of bad intent. This would be true regardless whether he told them
he selected them based on their observed cleaning ability or if he gave
them no reason at all. In this case, the plaintiffs could use the McDonnell-
Douglas / Burdine / Hicks framework to present their disparate treatment
claim, a framework that also relies heavily on the view that an employer's
consciously held prejudices are recognized by him or her as prejudices and
through conscious processes produced discriminatory behavior. First, they
would need to establish their prima facie case of intentional discrimination