Page 366 - Discrimination at Work The Psychological and Organizational Bases

14. LAW AND PSYCHOLOGY
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in firing: (a) They were Black and qualified for the positions they held, (b)
they were fired from their jobs, and (c) the jobs remained open and were
not eliminated (say, because of financial reasons). Typically, this prima facie
case is easily established and shifts the burden to the employer to provide
a legitimate, nondiscriminatory reason for their selection as cleaners and
their subsequent firings.
A plethora of potential reasons could be offered to justify the decision in
this case. As suggested above, perhaps Pohansky believed, based on obser­
vation, that they were the best cleaners. This belief may or may not have
been infected with prejudicial attitudes or stereotypes. If Pohansky was
aware of his biases and stereotypes and admitted that they influenced the
manner in which he evaluated the women's cleaning abilities, the reason
would be discriminatory and so would not meet the company's burden
of production. Pohansky would therefore not be expected to produce this
reason. Or, maybe he really did not like working with Black employees
generally, so that he held racial animus toward them. Again, this reason
would not be proffered because it would be discriminatory on its face. Per­
haps he just disliked these particular women, so that personal animosity
was the motivating cause of his behavior. (Racial animus could be under­
lying the personal animosity, of course, and Pohansky may or may not be
aware of it.) If the personal animosity reason were offered, it would meet
the employer's burden of providing a legitimate, nondiscriminatory rea­
son: The reason is not discriminatory on its face and the firing could reflect
a legitimate means of alleviating workplace tensions.
Now the plaintiffs would need to prove, by a preponderance of the evi­
dence, that discriminatory ill motives were the real reason for their selection
and termination. Clearly, evidence to establish this would be difficult. Ev­
idence that he held no personal animosity might be difficult to obtain, and
even if obtained, would not be sufficient to demonstrate that his motives
were discriminatory. Without racial commentary, there is nothing that di­
rectly suggests that the personal animosity is, at least in part, motivated by
racial animus. Indirect or circumstantial evidence could typically be offered,
if available. Here, this would be evidence that Black women were treated
differently than comparably situated White women. Although this could
be sufficiently suggestive of discriminatory intent, the possibility remains
that it would be insufficient. There must be enough evidence to create the
inference that Pohansky held personal animosity toward the White woman
and still did not assign her to clean, or held conscious stereotypes about
the cleaning abilities of Black women that caused him to observe them as
better cleaners in order for there to be comparative evidence suggestive of
discriminatory intent. Without this, no intentional discrimination can be
said to have occurred and Pohansky's employer would not be viewed as