MINIMAL RELEVANCE: NON-DISABLED REPLACEMENT EVIDENCE IN ADA DISCRIMINATION CASES Craig Robert Senn* I. Introduction ..............................................................................66 II. Prima Facie Case, Replacement Evidence, and the ADA .......69 A. Supreme Court Precedent Regarding the Prima Facie Case and Replacement Evidence.......................................69 1. Prima Facie Case and Its Rationale .............................70 2. Replacement Evidence and the Prima Facie Case .......75 B. Lower Court Approaches to Non-Disabled Replacement Evidence in ADA Cases ..............................77 1. Legally Necessary Prima Facie Element? ....................78 a. Mandatory Prima Facie Element Approach ...........78 b. Non-Mandatory Prima Facie Element Approach ................................................................82 2. Legally Sufficient Proof of Discriminatory Intent? .....88 III. Proposing a Minimal Relevance Approach to Non- Disabled Replacement Evidence..............................................94 A. First Feature—Unnecessary Prima Facie Element............96 1. Black Letter Law from O’Connor ...............................96 2. ADA Anti-Discrimination Policy ................................99 B. Second Feature—Insufficient Proof of Discriminatory Intent................................................................................112 1. Statistical Evidence and Probability Theory ..............113 *Associate Professor of Law, Loyola University New Orleans College of Law; J.D., with Honors, The University of North Carolina at Chapel Hill, 1995; B.A., Summa Cum Laude, The University of Georgia, 1992. The author’s e-mail address is [email protected]. I would like to thank: Loyola University New Orleans College of Law for its research support; Professor Michael Waterstone (Loyola Law School (Los Angeles)), Professor Robert Dinerstein (American University Washington College of Law), and the faculty at Marquette University Law School for reading and commenting on earlier versions of this article; and Sharon Senn for all of her support. 66 BAYLOR LAW REVIEW [Vol. 66:1 2. Probability Theory and Non-Disabled Replacement Evidence .....................................................................117 IV. Conclusion .............................................................................125 I. INTRODUCTION In the almost twenty-five years since passage of the Americans with Disabilities Act of 1990 (ADA),1 hundreds of thousands of job applicants and employees have filed disability discrimination claims against their employers.2 Over the last ten years, the Equal Employment Opportunity Commission (EEOC), as the federal administrative agency that enforces the ADA (in addition to Title VII of the Civil Rights Act of 1964 (Title VII)3 and the Age Discrimination in Employment Act of 1967 (ADEA)4) has seen 1Americans With Disabilities Act of 1990, Pub. L. No. 101-336, 104 Stat. 327 (codified at 42 U.S.C. § 12101 (2006)). The Americans with Disabilities Act of 1990 (ADA) generally prohibits employment discrimination against a “qualified individual” because of “disability.” 42 U.S.C. § 12112(a)-(b) (2006). The Act also prohibits retaliatory action against a person for having “opposed any act or practice made unlawful” by the ADA or having “made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing” under the ADA. Id. § 12203(a). The ADA defines the term “qualified individual” as a person “who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” Id. § 12111(8). The Act defines the term “disability” as (i) a “physical or mental impairment that substantially limits one or more major life activities of such individual,” (ii) having “a record of such an impairment,” or (iii) “being regarded as having such an impairment.” Id. § 12102(2). 2See U.S. Equal Employment Opportunity Comm’n, Charge Statistics: FY 1997 through FY 2012 (2013), http://www1.eeoc.gov/eeoc/statistics/enforcement/charges.cfm?renderforprint=1. 3See 42 U.S.C. §§ 2000e-4, e-5 (2006). Title VII of the Civil Rights Act of 1964 (Title VII) generally prohibits employment discrimination because of race, color, religion, sex, or national origin. See id. § 2000e-2(a)(1); see also Pregnancy Discrimination Act of 1967, Pub. L. No. 95- 555, § 1, 192 Stat. 2076, 2076 (codified as amended at 42 U.S.C. § 2000e(k) (2006)) (amending Title VII to clarify that unlawful discrimination “because of sex” includes “because of or on the basis of pregnancy, childbirth, or related medical conditions”). Title VII also contains an anti- retaliation provision similar to that of the ADA. See 42 U.S.C. § 2000e-3(a) (2006); supra note 1 (describing the ADA’s anti-retaliation provision). 4See 29 U.S.C. §§ 621–634 (2006). The Age Discrimination in Employment Act of 1967 (ADEA) generally prohibits employment discrimination because of age (forty years old or older). Id. §§ 623(a), 631(a) (limiting the ADEA’s scope to persons “at least 40 years of age”). The ADEA also contains an anti-retaliation provision similar to those of the ADA and Title VII. See 2014] MINIMAL RELEVANCE 67 a dramatic increase in these ADA claims. For example, in 2003, only 18.9% (or, 15,377) of the 81,293 total claims filed with the EEOC alleged disability discrimination.5 But, in 2012, 26.5% (or, 26,379) of the 99,412 total filed claims involved such discrimination.6 These recent statistics for ADA claims are all-time highs.7 How our federal courts view circumstantial evidence of an employer’s purported discriminatory intent in ADA “disparate treatment” claims8 can be, and often is, critical to their success. For example, consider a disabled job applicant whom an employer rejects for a position; or, a disabled employee whom an employer rejects for a promotion or whom it selects for layoff. If the employer ultimately decides to hire, promote, or retain a person who is not disabled (the “non-disabled replacement”) for the position at issue, how relevant is this non-disabled replacement evidence in any ensuing ADA claim? Legal Necessity. The first relevance-related question regarding this evidence is its legal necessity—namely, should non-disabled replacement evidence be a legally necessary element of an ADA plaintiff’s claim? Currently, the federal circuit courts are split on this issue. Some federal id. § 623(d); supra notes 1, 3 (describing the ADA’s and Title VII’s anti-retaliation provisions, respectively). 5U.S. Equal Employment Opportunity Comm’n, supra note 2. 6Id. 7See id. In 2012, only race and sex discrimination claims were more prevalent than disability discrimination claims. See id. (stating that 33.7% (or, 33,512) of the 99,412 total filed claims alleged race discrimination and that 30.5% (or, 30,356) of these claims alleged sex discrimination). 8Employer intent is the key inquiry in discrimination cases that rely on disparate-treatment (rather than disparate-impact) theory. See Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n.15 (1977) (“‘Disparate treatment’ . . . is the most easily understood type of discrimination. The employer simply treats some people less favorably than others because of their race, color, religion, sex, or national origin. Proof of discriminatory motive is critical. . . . Claims of disparate treatment may be distinguished from claims that stress ‘disparate impact.’ The latter involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity. Proof of discriminatory motive . . . is not required under a disparate impact theory.”) (Internal citations omitted); see also MICHAEL J. ZIMMER, CHARLES A. SULLIVAN & REBECCA HANNER WHITE, CASES AND MATERIALS ON EMPLOYMENT DISCRIMINATION 191 (8th ed. 2013) (“While disparate treatment discrimination is the purposeful exclusion of protected class members from jobs, disparate impact discrimination exists when employment policies, regardless of [neutral] intent, adversely affect one group more than another and cannot be adequately justified.”). 68 BAYLOR LAW REVIEW [Vol. 66:1 circuits follow a “mandatory prima facie element approach.”9 This view includes non-disabled replacement evidence as a legally necessary element of an ADA plaintiff’s prima facie case.10 Under this first approach, an ADA plaintiff automatically loses if this evidence is lacking. In contrast, other federal circuits follow a “non-mandatory prima facie element approach.”11 This view excludes (or omits) non-disabled replacement evidence as a legally necessary element of an ADA plaintiff’s prima facie case. Under this second approach, an ADA plaintiff can still prevail even if this evidence is lacking (i.e., by using other circumstantial evidence of the employer’s discriminatory intent). Legal Sufficiency. The second relevance-related question regarding non-disabled replacement evidence is its legal sufficiency—namely, should this evidence (if present) be legally sufficient to create a genuine dispute or issue of material fact regarding the employer’s purported discriminatory intent at the Rule 56 summary judgment stage?12 Unfortunately, the few federal courts to have addressed this issue in the ADA context have offered little guidance or explanation regarding their conclusions on it. Part II of this article presents applicable Supreme Court precedent regarding the prima facie case of employment discrimination and the relevance of replacement evidence in age discrimination cases.13 This part then discusses applicable circuit and district court precedent regarding the above-referenced legal necessity and legal sufficiency issues as to non- disabled replacement evidence in ADA cases.14 Part III of this article proposes a unique, two-pronged “Minimal Relevance Approach” to bring uniformity and clarity to these legal necessity and legal sufficiency issues under the ADA. The two concrete features of this proposed approach are: 9See infra Part II.B.1.a (discussing the mandatory prima facie element approach). 10See infra Part II.A.1 (discussing the now-familiar, burden-shifting framework in employment discrimination cases (which includes the plaintiff’s prima facie case), as set forth by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–03 (1973)). 11See infra Part II.B.1.b (discussing the non-mandatory prima facie element approach). 12FED. R. CIV. P. 56(a) (“A party may move for summary judgment, identifying each claim or defense—or the part of each claim or defense—on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”). 13See infra Part II.A.1–2 (discussing applicable Supreme Court precedent). 14See infra Part II.B.1–2 (discussing applicable precedent on each of these issues). 2014] MINIMAL RELEVANCE 69 (1) Unnecessary Prima Facie Element: non-disabled replacement evidence is not a legally necessary element of an ADA plaintiff’s prima facie case; and (2) Insufficient Proof of Discriminatory Intent: non- disabled replacement evidence (if present) is legally insufficient to create a genuine dispute or issue of material fact regarding the employer’s purported discriminatory intent at the Rule 56 summary judgment stage. The first feature is warranted for three reasons: (a) it is consistent with black letter law from applicable Supreme Court precedent; (b) it promotes the ADA’s anti-discrimination policy; and (c) it reflects Supreme Court philosophy regarding the prima facie case and its proper role.15 The second feature is justified based on probability theory and statistical evidence regarding disabled workers in the United States.16 II. PRIMA FACIE CASE, REPLACEMENT EVIDENCE, AND THE ADA An understanding of certain foundational concepts of federal employment discrimination law can be useful when evaluating the relevance of non-disabled replacement evidence in ADA cases. First, this part presents applicable Supreme Court precedent regarding the prima facie case of employment discrimination and the relevance of replacement evidence in age discrimination cases. Second, this part discusses applicable circuit and district court precedent regarding the legal necessity and legal sufficiency issues as to non-disabled replacement evidence in ADA cases. A. Supreme Court Precedent Regarding the Prima Facie Case and Replacement Evidence In 1973, the Supreme Court established the foundational concepts of the prima facie case and the burden-shifting framework in federal employment discrimination cases.17 Then, in 1996, the Court addressed the more specific 15See infra Part III.A.1–3 (discussing these defenses of the approach’s first feature). 16See infra Part III.B.1–2 (discussing this defense of the approach’s second feature). 17See generally McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 70 BAYLOR LAW REVIEW [Vol. 66:1 issue of the relevance of replacement evidence in discrimination cases under the ADEA.18 1. Prima Facie Case and Its Rationale Over forty years ago, the Supreme Court forever changed the landscape of employment discrimination law with its 1973 decision in McDonnell Douglas Corp. v. Green.19 There, the Court confronted a Title VII race discrimination claim, in which the plaintiff alleged that the employer had refused to rehire him because of his race.20 The Court specifically focused upon the “critical issue . . . concern[ing] the order and allocation of proof in a private, non-class action challenging employment discrimination.”21 A unanimous Court then established the now-familiar, three-step “order and allocation of proof” framework for disparate treatment cases that involve only circumstantial (rather than direct) evidence of discriminatory intent.22 First, the Court stated that the plaintiff “must carry the initial burden under the statute of establishing a prima facie case of racial discrimination.”23 Outlining this burden, the Court enumerated four standard elements to this “prima facie case”: 18See generally O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308 (1996). 19See generally McDonnell Douglas Corp., 411 U.S. at 792. 20Id. at 794–97. 21Id. at 800; see id. at 793–94 (“The case before us raises significant questions as to the proper order and nature of proof in actions under Title VII of the Civil Rights Act of 1964 . . . .”). 22McDonnell Douglas Corp., 411 U.S. at 802–04. “Direct evidence” is that which “does not require the finder of fact to draw an inference of discrimination; in other words, the evidence, by itself, establishes an intent to discriminate.” MARION G. CRAIN, PAULINE T. KIM & MICHAEL SELMI, WORK LAW: CASES AND MATERIALS 567 (2d ed. 2010); see ZIMMER ET AL., supra note 8, at 82 (“The classic notion of ‘direct’ evidence is evidence that, if believed, proves the ultimate question at issue without drawing any inferences.”). For example, direct evidence includes “statements by the decision-maker in the context of the decision that manifests bias.” ZIMMER ET AL., supra note 8, at 34 n.3; see id. at 6 (noting that this “admissions-against-interest testimony is sometimes described as ‘direct evidence’ of discrimination”); id. at 90–91 (noting that these statements—to be “admissions of a party opponent”—must “show illegitimate considerations” and be “connected closely . . . with the at- issue decision”); CRAIN ET AL., supra note 22, at 567 (noting that direct evidence would include an employer’s decision-making agents “explicitly stat[ing] that they want to hire younger employees, or that a particular individual is ‘too old’ to do this job”). As one would expect, such direct evidence is “relatively rare,” and most disparate treatment cases involve mere circumstantial evidence. Id. 23McDonnell Douglas Corp., 411 U.S. at 802. 2014] MINIMAL RELEVANCE 71 [Establishing the prima facie case] may be done by showing (i) that he [the plaintiff] 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.24 The Court evidenced a flexible philosophy regarding this prima facie case and mentioned the possibility of variable elements: “The facts necessarily will vary in Title VII cases, and the specification above of the prima facie proof required . . . is not necessarily applicable in every respect to differing factual situations.”25 Second, if the plaintiff satisfies his or her burden under the first step, the Court explained that “[t]he burden must [then] shift to the employer to articulate some legitimate, nondiscriminatory reason for the employee’s rejection.”26 This articulation, said the Court, “suffices to meet”27 and serves to “successfully rebut[]”28 the plaintiff’s prima facie case. Third, if the employer satisfies its burden under the second step, the Court explained that “the inquiry must not end”29 and described a third step—namely, that the plaintiff demonstrate the employer’s stated reason to be a pretext-based cover for actual, discriminatory intent: 24Id. The Court concluded that Green, an African-American, had established this prima facie case. Id. at 802–03. 25Id. at 802 n.13; see also Furnco Constr. Corp. v. Waters, 438 U.S. 567, 575 (1978) (noting that the McDonnell Douglas prima facie case “was not intended to be an inflexible rule”); id. at 577 (“The method suggested in McDonnell Douglas . . . was never intended to be rigid, mechanized, or ritualistic.”); Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 358 (1977) (“The company and union seize upon the McDonnell Douglas pattern as the only means of establishing a prima facie case of individual discrimination. Our decision in that case, however, did not purport to create an inflexible formulation.”). 26McDonnell Douglas Corp., 411 U.S. at 802. The Court concluded that McDonnell Douglas had articulated a legitimate, nondiscriminatory reason for its refusal to rehire Green—namely, his “participation in unlawful conduct against it.” Id. at 803. 27Id. at 804. 28Id. at 807; see also Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 255 n.10 (1981) (“A satisfactory explanation by the defendant destroys the legally mandatory inference of discrimination arising from the plaintiff’s initial evidence [via the prima facie case].”). 29McDonnell Douglas Corp., 411 U.S. at 804. 72 BAYLOR LAW REVIEW [Vol. 66:1 [The plaintiff] must . . . be afforded a fair opportunity to show that [the employer’s] stated reason for [his] rejection was in fact pretext. . . . . In short, . . . [the plaintiff] must be given a full and fair opportunity to demonstrate by competent evidence that the presumptively valid reasons for his rejection were in fact a cover[-]up for a racially discriminatory decision.30 For purposes of this third step, the Court mentioned types of “evidence that may be relevant to any showing of pretext.”31 For example, the Court noted that this proof may include “evidence that white employees involved in acts against [the employer] of comparable seriousness . . . were nevertheless retained or rehired.32 (This evidence is commonly referred to as “comparator” evidence.33) In addition, the Court noted that this proof may include the employer’s “general policy and practice with respect to minority employment,”34 with “statistics . . . [being] helpful to a determination of whether [its] refusal to rehire [the plaintiff] in this case conformed to a general pattern of discrimination against blacks.”35 30Id. at 804; id. at 805 n.18 (“[Green] must be given a full and fair opportunity to demonstrate by competent evidence that whatever the stated reasons for his rejection, the decision was in reality racially premised.”); id. at 807 (“[Green] must be afforded a fair opportunity to demonstrate that [McDonnell Douglas’s] assigned reason for refusing to re-employ was a pretext or discriminatory in its application.”). 31Id. at 804. 32Id. (“[McDonnell Douglas] may justifiably refuse to rehire one who was engaged in unlawful, disruptive acts against it, but only if this criterion is applied alike to members of all races.”). 33See ZIMMER ET AL., supra note 8, at 43 n.4 (“[A] plaintiff prevails by proving that she was treated differently than a ‘comparator’ (a similarly situated person of the other sex or a different race). . . . [I]t can be argued that the difference in treatment of a sufficiently close comparator is enough to infer discrimination.”); id. at 50 n.1 (highlighting “[c]omparators as proof of pretext” and noting that “proof of the plaintiff’s superior qualifications . . . may be sufficient evidence of pretext to go to a jury” because it raises “the inference that discrimination motivated the choice of less qualified [persons]”); CRAIN ET AL., supra note 22, at 582 n.7 (“[M]any claims of discrimination are proved by establishing that other similarly situated individuals were treated differently.”). 34McDonnell Douglas Corp., 411 U.S. at 804–05. 35Id. at 805; see id. at 805 n.19 (“The District Court may, for example, determine . . . that ‘the (racial) composition of [McDonnell Douglas’s] labor force is itself reflective of restrictive or exclusionary practices.’”) (internal punctuation omitted) (citing Alfred W. Blumrosen, Strangers 2014] MINIMAL RELEVANCE 73 While the McDonnell Douglas decision set forth this three-step framework for disparate treatment cases, the Court did not offer any rationale for the above-referenced prima facie elements.36 This explanation appeared in Supreme Court decisions from 1977 through 1981.37 In its 1977 decision in International Brotherhood of Teamsters v. United States, the Court addressed a Title VII race discrimination class action, in which the federal government alleged that the employer had engaged in a “systemwide pattern or practice” of refusing to hire applicants for line driver jobs because of their race.38 After noting the McDonnell Douglas burden-shifting framework, the Court explained that the role of the prima facie case was to raise a discriminatory “inference” as to the employer’s decision: The importance of McDonnell Douglas lies . . . in its recognition of the general principle that any Title VII plaintiff must carry the initial burden of offering evidence adequate to create an inference that an employment decision was based on a discriminatory criterion illegal under the Act. . . . . Although the McDonnell Douglas formula does not require direct proof of discrimination, it does demand that the alleged discriminatee demonstrate at least that his rejection did not result from the two most common legitimate reasons on which an employer might rely to reject a job applicant: [1] an absolute or relative lack of qualifications or [2] the absence of a vacancy in the job sought. Elimination of these reasons for the refusal to hire is sufficient, absent other explanation, to create an inference that the decision was a discriminatory one.39 in Paradise: Griggs v. Duke Power Co., and the Concept of Employment Discrimination, 71 MICH. L. REV. 59, 92 (1972)); infra Part III.B.1 (discussing statistical evidence and probability theory in employment discrimination cases). 36See McDonnell Douglas Corp., 411 U.S. at 802. 37See, e.g., Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 358 (1977). 38Id. at 325. 39Id. at 358, 358 n.44. 74 BAYLOR LAW REVIEW [Vol. 66:1 Similarly, in its 1981 decision in Texas Department of Community Affairs v. Burdine,40 the Court reiterated this rationale for the prima facie case. There, the Court addressed a Title VII sex discrimination claim, in which the plaintiff alleged that the employer had failed to promote (and later fired) her because of her sex.41 While mostly focusing on the employer’s burden under the second step of the framework,42 the Court echoed its earlier explanation regarding the role of the prima facie case: The prima facie case serves an important function in the litigation: it eliminates the most common nondiscriminatory reasons for the plaintiff’s rejection. . . . [T]he prima facie case ‘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.’ Establishment of the prima facie case in effect creates a presumption that the employer unlawfully discriminated against the employee.43 Consequently, in McDonnell Douglas, the Court set forth its now- familiar, burden-shifting framework in employment discrimination cases, the first step of which is the plaintiff’s prima facie case.44 Subsequently, the Court explained the role of this prima facie case—namely, to remove the two most typical reasons for an employer’s adverse action (i.e., the lack of job qualifications and/or the absence of an available job), thereby raising a suspicion or inference of discrimination.45 40450 U.S. 248 (1981). 41Id. at 249–50. 42See id. at 250 (“The narrow question presented is whether, after the plaintiff has proved a prima facie case of discriminatory treatment, the burden shifts to the defendant to persuade the court by a preponderance of the evidence that legitimate, nondiscriminatory reasons for the challenged employment action existed.”) (emphasis added). The Court concluded that the employer is merely under a burden of production (not of persuasion) when articulating the nondiscriminatory reason for its action. Id. at 257–58. 43Id. at 253–54 (quoting Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978)); see also id. at 254 n.7 (“The phrase ‘prima facie case’ . . . denote[s] the establishment of a legally mandatory, rebuttable presumption . . . .”). 44See 411 U.S. 792, 802 (1973). 45See also Furnco Constr. Corp., 438 U.S. at 577 (“A prima facie case under McDonnell Douglas raises an inference of discrimination only because we presume these acts [of the employer], if otherwise unexplained, are more likely than not based on the consideration of