McDonnell Douglas Corporation v. Green

PETITIONER:McDonnell Douglas Corporation
RESPONDENT:Percy Green
LOCATION:McDonnell Douglas Corporation Factory

DOCKET NO.: 72-490
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: United States Court of Appeals for the Eighth Circuit

CITATION: 411 US 792 (1973)
ARGUED: Mar 28, 1973
DECIDED: May 14, 1973
GRANTED: Dec 04, 1972

ADVOCATES:
Louis Gilden – for respondent
Veryl L. Riddle – for petitioner

Facts of the case

Percy Green, a black civil rights activist, was a mechanic working for the McDonnell Douglas Corporation, a St. Louis-based aerospace and aircraft manufacturer, from 1956 until August 28, 1964, when he was laid off. Green protested his discharge by saying that the company’s hiring and firing practices were racially motivated. As part of his protest, he and other members of the Congress on Racial Equality illegally parked their cars to block the main roads to the plant during the morning shift change. On July 2, 1965, there was a lock-in, in which workers were unable to leave, though the extent of Green’s involvement in this incident was unclear. On July 25, 1965, McDonnell Douglas Corporation advertised for qualified mechanics and Green reapplied, only to be turned down due to his involvement in the protests.

Green filed a petition with the Equal Employment Opportunity Commission (EEOC) and alleged that he was denied his position because of his race and civil rights activism. The Commission did not make any finding on the racial bias charge, but did conclude that Green was denied his job upon reapplication due to his involvement in civil rights protests. When the situation could not be resolved outside the courts, Green sued McDonnell Douglas Corporation. The district court dismissed the racial discrimination charge and held that the McDonnell Douglas Corporation refused to rehire Green because of his participation in illegal demonstrations rather than legitimate civil rights issues. The U.S. Court of Appeals for the Eighth Circuit affirmed the holding that illegal protests were not protected activities but remanded the case to reconsider the racial discrimination charge.

Question

(1) Is a complainant in an employment discrimination suit limited to those charges for which the Equal Employment Opportunity Commission found reasonable cause?

(2) If so, must the complainant present a prima facie case for racial discrimination?

Warren E. Burger:

We’ll hear arguments next in 72-490 McDonnell Douglas Corporation against Green.

Mr. Riddle you proceed whenever you’re ready.

Veryl L. Riddle:

Chief Justice and may it please the Court.

This case is before the Court to review the decision of the Eighth Circuit.

The plaintiff below who is the respondent here, Mr. Percy Green a black man, and the defendant below who is the petitioner here is the McDonnell Douglas Corporation.

We’ll refer to the parties to this suit by their names Mr. Green and by McDonnell during the course of the argument to the Court.

Mr. Green was a mechanic and had worked at McDonnell Douglass for 1966, up until the time of his layoff in 1964.

During that period of time, he had established a work record that qualified him by the rating records and the supervisors at the plant as being of average, or suppose said another way, satisfactory.

He was in that period of time, well up until 1963.

He was a member of the union and is such was protected by the union rights as it had bargained with the company for such as seniority and what have you.

However in 1962, the respondent here Mr. Green, became interested in doing some work outside of the work that he had been doing and made inquiry as to whether or not he could transferred over to the electronics division of McDonnell.

At that time he was told by supervisors and by people with whom he worked that for him to transfer over to that division would cause him to give up what seniority rights and whatever protection he had under the labor contract.

And it was pointed out to him that that new department that he was looking at was engaged in work related to the Gemini program and it could be a one shot contract, because of that there was some uncertainty as to the durability of it.

Well, considering those factors, 1962 Mr. Green declined to transfer and didn’t make an application.

A few months later the next year, Mr. Green again looked over at the other department and decided that maybe he should transfer.

The pay wasn’t significantly greater, but apparently it was a more prestigious position and would utilize his skills to a greater extent.

When he looked at it the second time, he was again advised that “because you’re a member of the union now, you have a certain seniority rights, but and again this is the Gemini program and you may — when you get over there as a non-union member or employee of McDonnell, you won’t have the security of the job that you have now.”

Well, in spite of that he decided to make the transfer and for approximately a year thereafter.

Potter Stewart:

It was 1963?

Veryl L. Riddle:

It was at 1963.

For approximately a year thereafter, he worked there as a technician over in the electronics division working on simulators for the Gemini program.

Well, as was predicted by some, the program was winding down and there was a layoff coming up.

The company using a pattern, or using a practice in this particular essence that they had used before called the “totem pole” referred to in the case, made a determination that some of the excess technicians working on that program would have to be dismissed, and of course — due course of time, Mr. Green and 14 to 15 others in fact were dismissed or laid off.

At the time that they were laid off, the time that Mr. Green was laid off, he made some protest to his superiors and to some of the executives of McDonnell and pointed out that in his opinion he was being discriminated because he was a black man, and because he was a known protestor and leader in civil rights activities around town.

Pointed out that his position in those activities was such that the company would be taking some risk if they laid him off, but in spite of the various and prolonged discussions, he was laid off.

Now, sometime after within a few weeks and in fact in October 1964, Mr. Green participated and was referred to in the record and in the briefs as a “stall-in” now this “stall-in” as was referred to by some of the witnesses in the case as an attempt to sabotage the facility and the operations of McDonnell.

I think to fully understand the significance and the impact of the other “stall-in” I would call the Court’s attention to pages 57, 58 and 59 of the volume one of the appendix.

Warren E. Burger:

How?

Give me that number again?

Veryl L. Riddle:

It’s on the volume 1 of the appendix and at page 507, 508 and 509.

Veryl L. Riddle:

It’s the last two or three pages in the — in that volume.

Now look at the plan that was devised by Mr. Green and others.

One could readily see that this wasn’t a carelessly planned program.

It was designed carefully and for the purpose of totally disrupting the flow of traffic to and from the plant facilities of McDonnell which are located on and near the airport, Lambert Field in St. Louis.

The plan being to park cars on roads that led to the excess and roads that led away during a shift change where something between 10 and 1500 people are going to be going to and from on limited access, and this is not a case such as a football field where the roads coming into small directions.

This is a case where there’s an airport and the access roads are much more limited than in the typical installation.

Potter Stewart:

Is the plant of the company right out there near the regular St. Louis Airport?

Veryl L. Riddle:

Yes, it is.

Potter Stewart:

That’s what I know.

Veryl L. Riddle:

It’s right near the runways and in fact, the manufacturing facilities are principally on the runway itself, or on the airport itself.

Potter Stewart:

On the airport?

Veryl L. Riddle:

Yes.

So as a result of this activity, the participants in fact drove their cars and parked them at strategically located positions.

And at that time as the plan called for, they locked their doors.

They put their brakes on.

They shut their motor off, and planned to stay there in that position for at least one hour.

And they were instructed to stay there and resist being taken away unless the officers made certain explanations to them as to why they should leave.

Now, the impact of a complete “stall-in” or a blockage of traffic at that time and under those conditions could have and except for alert police activity, could have been catastrophic and could have destroyed an entire shift operation at the plant.

And the amount of money and the amount of property potentially subject to destruction or damage as result to this is very, very substantial.

Now, following that program, Mr. Green was arrested and pay the fine, found guilty.

And sometime thereafter, I believe it was July the 2nd of 1965, Mr. Green had continued in his activities, some of with were lawful and some of them which were unlawful.

And at that time his group action locked the gates doors at a building that housed McDonnell Douglas personnel downtown.

At a time when the employees were attempting to leave the building, effect to this was to temporarily imprison the occupants of the building during a period of time that they would’ve been leaving.

And then on July the 22nd, just a few days after the lock-in at the Roberts building downtown, Mr. Green applied for a job as a mechanic at McDonnell Douglas.

Potter Stewart:

Does the record show whether or not he was employed during this period after his original layoff from your company?

Veryl L. Riddle:

Later record indicates that he was employed of and on, but I don’t believe the employment was steady or with one employer throughout that period of time.

Of course when he made this application the reaction from the people at McDonnell was predictable.

They said “No, we will not be able to use you.”

Following that, he filed his complaint with the EEOC.

EEOC made its investigation and made its report.

Veryl L. Riddle:

They found that there was reasonable basis for Mr. Green to bring a lawsuit and he filed one at that time under Section 704 of the Act.

Case come on for trial, well after a period of time had passed, Mr. Green filed his lawsuit in the United States District Court in Missouri.

It came on for trial before Chief Justice — Chief Judge Meredith there and it was tried for about four days.

During the course of the trial, or before the trial actually begun, Green made an effort to amend his petition to include raise or cause of action under 703 in addition to 704 and that was denied by the court.

The case went to trial under 704, but during the course of the trial Green attempted to interject 1981 Civil Rights Act as a basis for his discussion in the trial of the issues involving race.

At the close of that case, Judge Meredith made some findings, one of which was that the evidence shows that plaintiff’s civil rights activities were not considered as a factor and the decision to layoff the plaintiff.

And then he made these findings, and I think it’s important for the Court to carefully consider just what was before Judge Meredith and what it was that he found.

He says “The plaintiff contends the defendant violated 7043 because of his opposition to employment practices.

Plaintiff also contends in his post trial brief the defendant’s refusal to hire him was based on race and his participation in civil rights activities, violation of 1981 and this important to conclusion and finding by the court.

The court feels that the court’s discussion of the case under 704 will effectively dispose of any claim arising under Section 1981.”

And these are the controlling standards that Judge Meredith applied in reaching his decision.

He says this, “The matter before the court’s controlling an ultimate fact the questions are whether the plaintiff’s misconduct is sufficient to justify defendant’s refusal to rehire, and two, whether the ‘stall-in’ and ‘lock-in’ are the real reasons for defendant’s refusal to rehire the plaintiff.”

The court finds that they are.

Then the trial court proceeded to say that the plaintiff there Mr. Green had failed to establish by the greater way to preponderance that the defendant’s refusal to rehire plaintiff resulted from racial prejudice or plaintiff’s legitimate civil rights activities.

It seems clear from the record and then again quoting this are, “that the defendant’s reasons for refusing to rehire the plaintiff were motivated solely and simply by the plaintiff’s participation in the stall-in and the lock-in.’

The burden of proving other reasons was on the plaintiff.

Now, the case was appealed and went to the Eighth Circuit.

Potter Stewart:

But doesn’t that language sound like the District Court dealing only with the alleged 704 violation?

And he had stricken from the complaint, or what did he do, refused to allow amendment of the complaint?

Veryl L. Riddle:

Under 703.

Potter Stewart:

Under 703.

Veryl L. Riddle:

But the conclusion of the court there, Your Honor was, plaintiff has not shown the defendant was motivated by racial prejudice or because of the plaintiff’s legitimate civil rights activities.

He made the joint finding.

Potter Stewart:

But your submission I think that although the amendment to the complaint was not allowed that nonetheless in the course of the trial it was by agreement the implicit agreement that issue was tried?

Veryl L. Riddle:

It was tried and it was tried fairly.

And four days of trial and a careful reading of the transcript will indicate that at least 80% of all subjects inquired about and all questions do relate to the question of race.

And I think that it was for that reason that the trial judge, the district judge felt that under the contentions being made, that he could dispose of that issue in this case and did dispose of it.

Potter Stewart:

Although he had so far as the record goes and so far as the formal record goes, he had stricken and not permitted that issue to be tried in this lawsuit, and it’s correct isn’t it?

Veryl L. Riddle:

If the lawsuit had been tried consistent with what that ruling striking race, if it been tried consistent with that theory, yes I don’t think there’d be any validity in our position at all, but in fact it wasn’t.

It was tried thoroughly and this was the feeling of one member of the panel of the Eighth Circuit and the panel is shared by four members of that court.

William H. Rehnquist:

Mr. Riddle, I understand I find it to contend even if it was tried by consent that he was handicapped by the trial court’s failure to allow discovery on that count.

What’s you’re response to that contention?

Veryl L. Riddle:

Position to that Your Honor is this, that there was adequate discovery and there was enough discovery here to allow that issue to be tried.

There were discovery opportunities available to the plaintiff’s counsel that he didn’t avail himself of.

And voluminous records were in fact to made him available to any many use during the course of the trial.

We think that the ruling made in the pretrial as to the extent of the discovery was based upon the unreasonableness and burdensomeness of it.

It then required for tons in thousands and thousands of documents that were acquired weeks and weeks just to prepare all on issue that doesn’t seem to be irrelevant to of any issues that the case presented.

Now, the Eighth Circuit looked at the decisions below and affirmed it in every respect except it sent it back for a retrial on the racial discrimination issue.

Now, if the court had stopped there and used the basis raised by his Honor that it had been stricken and so maybe he didn’t had his full day in court and going back and try it again.

If it stopped there, the case wouldn’t be here today, but the court did some very significant additions to adjust that.

It said “One, that the prima facie case is made when the applicant here, a black man” — I think I should read that exactly as it is from out of the court’s opinion.

“When a black man demonstrates that he possesses the qualifications to fill a job opening and that he was denied the job which continues to remain open, we think he present a prima facie case of racial discrimination.”

Now what that does is to reverse at the point when Judge Meredith says it was up to the plaintiff in that case to establish that his discharge or his — the refusal to reinstate him was based upon his race that this was a burden that the petitioner or that the plaintiff had in the lower court.

The Eighth Circuit is saying that he merely makes that prima facie showing and then the burden is upon the company of McDonnell here to establish that it was not racially motivated.

Now, in addition to that the shifting of the burden of proof, I might say at this juncture that Congress in considering this one of the floor managers, we’ve cited that in our brief.

One of the floor managers carefully explained to members of Congress that the burden of proof in these cases under Title VII will be as it has always been that the burden will always be on the plaintiff, the person bringing the lawsuit and it made it abundantly clear that this was what Congress intended.

Here, the Eighth Circuit by its opinion is shifting that burden of proof, but that’s not all it did.

Second off, it said that subjective elements from the employer, in this case from McDonnell would be given little weight or its weight would be limited.

In the context of this case, and I might say further to that the third thing it said was that somehow McDonnell would have to establish or show that under these circumstances its refusal to rehire Green was related to job performance, while limiting the value or the weight of subjective evidence as the Eighth Circuit opinion did.

Test the other imposition had plus the burden of weight shift caused one member of the Eighth Circuit to think that the effect of this opinion would be to order McDonnell to reinstate or rehire Green.

And the view apparently was shared by four members of the court.

I think it’s clear when the employer here is inhibited by testifying as to his reasons, subjective reasons for making employment decisions that when that is being told or when the Eighth Circuit is telling the District Court that “you’re to give very little weight to that” that we think that that means practically that once the plaintiff Green here would make this prima facie case that we couldn’t rebut that prima facie case then by showing that our refusal to employ him was because he attempted to sabotage our plant, or locked some of our employees into the office building downtown.

I think the Eighth Circuit is saying that this is to be given very little weight and it probably will not justify your actions in refusing to employ.

Now there seems to be no question to what unlawful activity of any person would be adequate justification for an employer to refuse to hire.

And I think that would be true whether the applicant is white, whether he is an Indian or whether he is black, or whether he is a Baptist or a Jew, or Catholic.

I think that that is clear and I think the effect of this opinion, if it’s applied literally, will cause a preempt reversal discrimination.

For example, I don’t think it could be seriously questioned that if a white man were to throw a rock in the chairman of McDonnell’s window last night and he called me this morning and says “Can I discharge the man?”

I would say “Yes.”

Thurgood Marshall:

You could also say you could put him in jail.

Veryl L. Riddle:

Yes, and if a black man were to throw, by this opinion is it’s been interpreted and as we interpret a rock through his window, yes if I could — he could discharge him, I would have to say following the mandate of this opinion we’ll have to look to see how this might adversely influenced his ability to perform a job.

Thurgood Marshall:

But you could still put him in jail.

Veryl L. Riddle:

Still put him in jail.

But got out of jail, if we had to look at job performance, then we could very well be in position of having to get into that before I could be at ease and say “No, you can’t discharge him.”

I use that as an illustration of how —

Potter Stewart:

Or either this was a — the question would be must we hire him rather than can we discharge him, isn’t it?

Veryl L. Riddle:

I think the rule would be the same, Your Honor.

I think it applies to not only to discharge, I think it would apply to promotion and I think it would apply to job applicants.

Potter Stewart:

Yes.

Veryl L. Riddle:

What remaining time I have I’d like to reserve for rebuttal, Mr. Chief Justice.

Warren E. Burger:

Very well.

Mr. Gilden.

Louis Gilden:

Mr. Chief Justice and may it please the Court.

In answer to the question posed by Mr. Justice Stewart, I want to comment that Judge Meredith stated that the court feels that the court’s discussion of the case under 42 U.S.C. —

Potter Stewart:

Where are you reading from?

Louis Gilden:

I’m reading from page A45 of the petition for writ of certiorari.

The court feels that the court’s discussion of the case under 42 U.S.C. 2000 (e) 3 (a), that’s 704 (a), will effectively dispose of any claim arising under Section 1981, Section 42 U.S.C., Section 2000 (e) (a).

Potter Stewart:

Bottom of page two?

Louis Gilden:

That’s on the bottom of page A45.

This case was treated that’s a 704 case all the way through.

And Mr. Justice Rehnquist, I submit that Judge Lay’s comments that the Hebrew expression, “We tie their hands and have reproached them because they don’t use them” is a classic statement of this particular case.

Because plaintiff Green attempted to get statistical information by interrogatories, by motion of produce for inspection, and on the question of interrogatories the court struck the interrogatories on the grounds that they were oppressive.

On the question of the motion of produce for inspection, the court said specifically in its opinion that this is a race case and therefore you’re not entitled to all these statistics.

So therefore, on two occasions plaintiff had to come in and try this case knowing full well what the decision of the court, 704 (a); both on the question of motion to produce for inspection and both in the comments of the court in its opinion that’s a 704 (a) case.

This case was tried totally as a 704 (a) case.

The only statistics that were brought in the court were by Mr. Peter Robertson who was a representative of the Equal Employment Opportunity Commission and he came in on the eve of trial, and he was of that time in 1965 a representative of the Missouri Commission on Human Rights.

And he at that time did the investigation of the case, and he came in with some statistical information.

And night he came on the eve of trial and I interviewed him just prior to trial.

I had no opportunity, I was plaintiff’s counsel.

I had no opportunity to produce any of these figures.

I was foreclosed totally from introducing the statistics on employment.

Louis Gilden:

If this was a race case I would like to see it.

It’s never been submitted on the — as statistical case before Judge Meredith.

It was totally a 704 (a) case.

The records that were brought in by Mr. Peter Robertson related primarily to his disparate treatment when he worked for McDonnell Douglas before his layoff in August of 1964.

This case is a case to be tried and listened to on its particular issue, the facts in this particular case.

Mr. Riddle has gone through a whole chronology of the “stall-in” and the “lock-in” and the “lock-in” is not a matter before this Court.

The court held that Mr. Green had nothing to do with it.

Byron R. White:

I take it though you do not dispute the fact that it took place both?

Louis Gilden:

The “lock-in” did take place, that’s correct.

The “stall-in” did take place.

Mr. Green pled guilty to the “stall-in”.

He was out there for ten minutes and I submit to the Court that in October of 1964 there was no Equal Employment Opportunity Act.

The act became effective July the 2nd 1965.

There was no legal recourse.

In any of the laws of this country, we didn’t know about 1981 at that time.

That became somewhat crystal clear after Jones v. Mayer.

We didn’t know about 1981.

We only knew about the Equal Employment Act that had been enacted in July of 1964 to become effective in July of 1965 that’s the all we knew.

And on that particular date, what was he protesting?

He was protesting discrimination in employment of McDonnell Douglas.

That’s what he was doing.

Warren E. Burger:

So do you — is it your position that that includes the right to use unlawful means and that those unlawful means may never be then taken into account?

Louis Gilden:

No, Your Honor, I don’t submit that.

That isn’t my position in this case.

McDonnell can use that reason and — but I think one has to look at which is what the Court of Appeals had before, was a record on 704 (a).

They had a record before them that showed the treatment of Green when he was working for McDonnell Douglas and they saw that in August of 1964 when this totem pole was drawn up that the Vice-president of McDonnell Douglas, based upon the evidence of Mr. Robertson, drew a line over Green’s name and he was the highest senior man in a whole department of 100 white men in a research department.

The only black man and they drew the line over his name as the man to be laid off.

Potter Stewart:

I thought that issue wasn’t before us here at all?

Louis Gilden:

No, I’m that’s the response —

Potter Stewart:

That everybody had based the statute to be different?

Louis Gilden:

Well, I think Your Honor, I think it’s important in terms of what the courts tell a prima facie case would be in this — in the opinion of the Eighth Circuit.

I think it’s a question of what the court knew at that particular time based upon the evidence before it, and what Green would introduce in the race case.

And that he would show the treatment he had to show that the treatment of discrimination when he works there continue when he applied for the job in —

Potter Stewart:

You’re not saying the Court of Appeals prejudged the case —

Louis Gilden:

Oh!

No, I’m not saying if they —

Potter Stewart:

— and remanded the case to the District Court.

Louis Gilden:

That’s correct, but only on those facts Mr. Justice Stewart, only on those facts.

They knew that Green was qualified.

They said that in the opinion.

Potter Stewart:

Well, the respondent indicates that —

Louis Gilden:

That’s right.

Potter Stewart:

— he was a satisfactory mechanic that too is not an issue.

Louis Gilden:

Yes, but the court said that he could — that Green could show that the reasons given were protectoral, and that would go to the race situation.

Potter Stewart:

Right.

Louis Gilden:

And that he could show that the real reason like Green wasn’t hired was because the way they treated him before.

That —

Potter Stewart:

No, no.

The real reason was because of his race.

That’s what he’d have to show not —

Louis Gilden:

That’s correct.

And they could also show that they also have this as part of the record that Mr. Riddle said there were 14 or 15 reasons why he wasn’t hired.

14 or 15 reasons, now they only two reasons and they also brought in the record that there was the picketing of Mr. McDonnell’s home from the street, not anywhere near the house.

And one of the witnesses talked about that as a basis for not hiring.

Warren E. Burger:

If there was one good reason the fact that there were 14 others, would you think no difference would make?

Louis Gilden:

Well, that would be a matter for the trial on the race case before the District Courts, Your Honor.

Warren E. Burger:

Yes, but when the Court of Appeals remanded it, they undertook to try to allocate the burden of proof.

Louis Gilden:

No, they didn’t Your Honor.

What they did, they didn’t shift the burden.

The burden of proof was still with the plaintiff in this case.

Warren E. Burger:

Did they not direct?

Did they not direct the district judge virtually not to give weight to this evidence?

Louis Gilden:

No, no.

They didn’t say that Your Honor.

Warren E. Burger:

Give very little weight, if any?

Louis Gilden:

Oh!

No, they didn’t say that.

They only said that employment decisions based upon subjective criteria.

They didn’t say subjective evidence, they said subjective criteria.

And this Court in Greek said that Congress directed the thrust of the act against the consequences of employment decisions, not simply the motivation and the consequences would not for highly —

Warren E. Burger:

What do you find in the statute that supports what the Court of Appeals said?

Louis Gilden:

In the statute in terms of subjective evidence?

It goes into some of the case law that we’ve had Your Honor, in terms of the weight to be given to subjective criteria.

Not subjective evidence, subjective criteria.

In fact, the second question presented by McDonnell here doesn’t even relate to the decision.

They did not bore McDonnell from introducing subjective evidence.

Nothing in the opinion saying that, nothing.

William H. Rehnquist:

What is your answer to the Chief Justice’s question that what do you find in the statute that supports the Court of Appeals decision on the burden of proof and on prima facie case?

Louis Gilden:

There’s nothing specifically in the statute relating to what the burden of proof would be in a case involving an application for employment.

Not specifically stated.

But the court had before a somewhat shallow record based upon 704 (a).

They knew how Green had been treated and based upon the facts before them.

They set forth what could constitute a prima facie case.

And then they anticipated, they anticipated that Green could come forward — would have to come forward more with more evidence.

They anticipated, they said that because after they said McDonnell would have to show that the reasons they didn’t hire Green were because he was irresponsible toward his work.

They then said that Green would have to come back and show that the reasons were protectoral or else McDonnell Douglas had engaged racial discriminatory practices at the plant.

And they showed what the burden would have to be with Green later on.

They didn’t anticipate that he could rest at the close of his prima facie, so called minimal prima facie showing.

That he would have to come back.

They also knew that McDonnell would come in with the “stall-in” as a reason, and they would — and Green would have to come in and show that reason that it was protectoral.

William H. Rehnquist:

What’s your response to Mr. Riddle’s contention that in the congressional debates preceding the enactment of this, the question of the prima facie case was considered and the congressional conclusion was that the burden of proof should be on the plaintiff in all state?

Louis Gilden:

There’s no question that the burden of proof is on the plaintiff, Your Honor.

And there’s no question that we — that Green was called upon to assume that burden before the District Court.

There’s no question about that.

And I would say to this Court that McDonnell hasn’t even appealed that point to this Court.

They haven’t even raised it.

They have raised two hypothetical questions before this Court that are nearly going to be somewhat helpful, I assume, if this Court remands this case to District Court in terms of what some of the guidelines and standards might be.

Can in a Title VII case, is an employer supposed to hire a person who engages, a black man who engages in unlawful activities?

That’s a matter for the District Court to decide in either — if that were the only fact presented that would be a matter of judging for the District Court.

But the court contemplated more facts.

It contemplated more discover, more information.

I might submit, I might submit, this makes it part, it’s not part of this record at all.

And as a matter not in the record, it was a matter that was presented by the appendix in the appellate court that subsequent to these proceedings, the F15 contract was denied in McDonnell Douglas by the Secretary of Defense on the ground that they were discriminating against blacks.

That was subsequent to the trial of Percy Green against McDonnell Douglas.

Now if a contract was denied to McDonnell Douglas on the F15 because they were engaged relations discriminatory factors, I’m quite sure that relay some substance not for just going back to the court on some pretence, but on the basis that we have something to talk about.

Warren E. Burger:

Suppose instead of having just engaged in the blocking of the highway, “stall-in” I guess that’s called here?

He had thrown some dynamite under trucks of McDonnell Douglas, would you think then McDonnell Douglas would have to assume the burden of showing by objective evidence — some objective evidence to use the Court of Appeals terms that that rendered him an unsuitable employee?

Louis Gilden:

Well, Your Honor the dynamiting — Mr. Chief Justice, the dynamiting certainly would be objective evidence.

There’s nothing subjective about dynamiting of building —

Warren E. Burger:

Well, is there anything subjective about blocking a public highway?

Louis Gilden:

The court never said, Mr. Chief Justice that they couldn’t introduce that.

They just said that the courts filed them that McDonnell would come in with that evidence on the race case.

Warren E. Burger:

The court instructed the trial court in effect, you don’t have to pay any attention to that and really said “You’d better not pay any attention to it.”

Louis Gilden:

Your Honor, I don’t really read the opinion that way.

I read it on the —

Warren E. Burger:

Well, that’s the way I read it.

Louis Gilden:

Well, it doesn’t say that specifically.

It says that —

Warren E. Burger:

I don’t know how you could read it any other way?

Louis Gilden:

Well, it says that employment decisions based upon subjective criteria carry little weight.

Louis Gilden:

They didn’t say they forebode them from producing it at evidence.

Carry little weight and that’s just the line of decisions that the Eighth Circuit just went ahead and went along with.

That wasn’t a fact that they were mandating a District Court to keep out the “stall-in.”

The “stall-in” was objective.

There’s nothing subjective about a “stall-in.”

Warren E. Burger:

Well, in that evidence was before the District Court, wasn’t it?

Louis Gilden:

The “stall-in?”

Warren E. Burger:

Yes.

Louis Gilden:

Yes, it was.

Warren E. Burger:

And the District Court decided the case on that basis, did they not?

Louis Gilden:

On the 704 (a) issue Your Honor, on the 704 (a) issue they decided on that basis, because the court was very specific about how they’re trying this case.

They never — the court never changed this opinion, and its opinion and in its ruling on the discovery etcetera, it was not a race case.

It was a 704 (a) civil rights protest case.

And there were two allegations that Green had made in his complaint before EEOC, civil rights and the question of race.

And the Equal Employment Opportunity Commission had merely made one finding and that was on civil rights, and what the District Court did was strike race because it felt that there had to be a reasonable cause finding as a jurisdictional prerequisite to the institution of an action under Title VII.

And then in fact, McDonnell were the ones who filed the motion to strike race from the pleading.

The court didn’t do it on its own.

And the court held that it was not a race case, and the case was tried strictly on that.

Byron R. White:

Mr. Gilden, what do you understand the court to have meant by this, if McDonnell can demonstrate the Green’s participation in the “stall-in” in some objective way reflects adversely upon job performance, McDonnell’s refusal to rehire Green will be justified.

Louis Gilden:

What page is that?

Is that —

Byron R. White:

This is in page A13, bottom of the page.

Louis Gilden:

Your Honor, that was excised from the opinion.

That’s the original opinion.

Oh!

It was?

Louis Gilden:

Yes, that was excised and that’s why I — we had carried, you see point five was totally excised and changed by Judge Bright, and the opinion was changed to Griggs opinion to a non-Griggs opinion.

And so I think what some confusion in this because you have to read the new point five which is carried on page A31.

Warren E. Burger:

You think there is no significance to be attached to the content of the Section 5 after they excised it?

Louis Gilden:

You mean the original.A5?

Warren E. Burger:

Yes.

Louis Gilden:

I don’t think it has any bearing whatsoever.

It’s — court made a change in this decision and I think what all they called upon to make decisions upon the change.

I don’t think we’re called upon to anticipate or to make this Court — no court would rebound by a court that struck the original opinion, use the original opinion as a basis for law.

The only opinion we have before us is A31 to A33 which is that close to two pages which sets forth a standards, and that case they said “However applicants past participation in unlawful conduct directed as prospective employer might indicate the applicant’s lack of a response or attitude toward performing work for that employer.”

But they didn’t say “It had to be job related.”

It didn’t say it had to be job related.

It was not a Griggs decision.

It doesn’t have to indicate that an irresponsible attitude toward his work.

Louis Gilden:

Right, right.

And I think the reason they’re saying that Your Honor is this.

That I think the court —

But normally they demonstrate that on Matherne?

Louis Gilden:

Well, I would say that the start —

Isn’t that right?

Louis Gilden:

Yes, that’s right.

I would say that the “stall-in” would be a basis for a trial judge to consider and the totality of the evidence before it as to whether or not racial discrimination was the reason that Green wasn’t hired in July of 1965, or whether that “stall-in” was in October of 1964 where there was no Equal Employment Opportunity Act was the basis.

And the court was sending this matter back for what the real reasons for.

Whether the reasons were protectoral —

Or would it be enough that the company showed in everybody accepted that the reason he was fired was because he participated in the “stall-in?”

Louis Gilden:

If that were the only fact, Your Honor?

Yes.

Louis Gilden:

I would say that could be a basis for not hiring, yes, if that was the only fact.

If that was the only fact that.

If that was the only fact before the District Court, but the court contemplated it.

Well, I know but that wouldn’t necessarily show that there are even, maybe not even intimate that he had an irresponsible attitude.

Louis Gilden:

Well, I would say that the court make a decision based upon the guidelines and standards set forth in the opinion as to whether the question of a “stall-in” against an employer complaining about racial discrimination on the plant, in October of 1964 would be an irresponsible attitude towards employer for the type of illegal protest he was engaged in, and that’s the determination the court would make, the District Court would make based upon the facts before it.

Warren E. Burger:

Focusing on that same language where the court said “However” this is in the revised opinion, and after comes past participation and unlawful conduct directed at his perspective employer might indicate the applicant’s lack of a responsible attitude.

Where do you find — what do you find in the statute that says that employer might consider that?

Louis Gilden:

Well, Your Honor, I think, you know this is a double-edged sword.

Louis Gilden:

They — McDonnell, I would say it’s not in the statute.

This is mere dictum in the court, into the court’s decisions.

The basic decision relates to whether or not Green had to have a reasonable cause finding as a statutory prerequisite to the institution of an action.

That’s t the only decision before the Eighth Circuit.

This is where dictum —

Warren E. Burger:

When you say that’s dictum, you mean the district judge can completely ignore it?

Louis Gilden:

Well, I would say that he would think about the guidelines set up by the Eighth Circuit, but its dictum.

That’s not the rule of the case.

Warren E. Burger:

Pretty pointed dictum, isn’t it?

Louis Gilden:

It is pretty pointed, yes.

And I would say that a District Court would do well to submit to those guidelines and I submit that that is based upon these facts.

Based upon the facts submitted before the appellate court that these guidelines would be appropriate because the court was well aware of what evidence was — had been submitted on the 704 (a) issue, and based upon these guidelines that was — that would be appropriate.

I submit that the two questions that have been presented for this Court aren’t even rules of this case.

The question of whether a black man can be denied employment if he engages in civil rights protest under Title VII, and the questions of subjective evidence.

There’s nothing in any of the decisions which would keep McDonnell Douglas from submitting subjective evidence before the trial judge.

If that’s all they had and I might state for this Court, and this Court well knows that if I come into court as Mr. Crone did in the trial and said “I don’t discriminate against blacks.”

What kind of a statement is that?

That’s a subjective statement.

That’s not objective.

What the court is saying in subjective criteria is a near sort of declamation about your own integrity and your virtue and your own honesty.

I do not discriminate against blacks.

That kind of declaiming about how virtuous you are and honest you are and how good a person you are.

That is subjective evidence, but when you come in and say that somebody engages in some activity or behavior, there would be something objective.

The court never says the “stall-in” was not objective.

Warren E. Burger:

Judge Johnson thought the District Court was going to have some problems with trying to figure out just what was the holding, and what was dictum, and what was guideline, didn’t he?

Louis Gilden:

I think Judge Johnson was still relating to the excised opinion, Your Honor.

He was still going into job performance in his second dissenting opinion and I had he read the decision a little more closely, he would’ve come the decision that the question of Griggs, Griggs was not before the court.

The question of job performance was not before the court, and the court had carefully laid down very, very accurate and very precise standards for the District Court to be guided by.

I submit that there’s only one issue, and I’ve been kept from my discovery on race as to McDonnell Douglas is engaged in racial discriminatory practices.

I haven’t had that trial.

Louis Gilden:

It hasn’t been tried.

I submit that Green should have that trial.

He should have an opportunity to show that the reasons given were protectoral.

He should have an opportunity to show that the broad statistics, if there are any, and I assume that might be in view of what happened and which I’ve informed the Court about.

About he racial discriminatory hiring practice at McDonnell Douglas and based upon that, I hope to prevail a District Court again if this Court gives me this opportunity.

Thank you very much.

Warren E. Burger:

Thank you Mr. Gilden.

You have about three minutes left Mr. Riddle.

Veryl L. Riddle:

Mr. Chief Justice, I’m pained to have to correct my brother counsel here on the F15 contract which he mentioned to the Court to acknowledge that it was not on the record.

The fact of the matter that contract has been awarded to McDonnell Douglas, and all orders made with respect to equal opportunity employment had been complied by and conformance with the executive orders for quite sometime.

I’m pained to have to deny that off the record comment.

I would say in closing to this Court that this law Title VII has been tremendously beneficial in achieving the objectives identified by Congress.

And a lot of lawsuits had been filed at the District Courts throughout the country and the act has, I think, been a success, remarkable success.

This case particularly case as result of the opinion of the Eighth Circuit has created a lot of questions and has caused a lot of concern by members of the bar, by District Courts and by employers and employees as well.

I think that the cause of the complete reversal of the traditional principles that involve in trying this issue, were the only issue ever to determine the real reason why a person is refused employment, discharged from employment, or other action or relations that he has with his employer.

And to get at the real issue in the traditional sense, courts have done a good job and they’ll continue to do a good job.

I think that there is nothing at all, nothing in the law.

There is just nothing at all in the decisions in the past where you have a one on one, an individual employer or an individual applicant to make an application for a job.

And this decision, if it’s followed and conscientious District Courts are going to try to follow it.

For them to try this, the law be turned on its head.

And I submit for those reasons that the case certainly should be reversed, and we think it ought to go back, with an order from this Court that the judgment of the trial court who heard the evidence and who concluded that this sort of unlawful conduct was not protected and it would form an abundant basis for refusal to employ any person.

Thank you.

Warren E. Burger:

Thank you Mr. Riddle.

Thank you gentlemen.

The case is submitted.