Writings by Justice O’Connor

Title VII, ADEA and ADA

Anshu Srivastava

Graduate Student

Lamar University

Spring 2002

1. An introduction to Justice O’Connor

Sandra Day O’Connor was born in El Paso, Texas, on March 26, 1930. She graduated from Stanford University in 1950 and Stanford University Law School in 1952. After graduation, O’Connor became a Deputy County Attorney of San Mateo, California. She moved to Germany and worked as a civilian attorney for the United States Army in Frankfurt from 1954 to 1957.

Upon her return to the United States, O’Connor engaged in private law practice. She was appointed to the Arizona State Senate in 1969 to fill an unexpired term, and the following year she was elected to the State Senate. Twice re-elected, O’Connor was majority leader of the State Senate from 1973 to 1974. She was elected to the Maricopa County Superior Court in 1975 and appointed to the Arizona Court of Appeals in 1979. President Ronald Reagan nominated O’Connor to the Supreme Court of the United States on August 19, 1981. The Senate confirmed the appointment on September 21, 1981, making O’Connor the first female Associate Justice in the history of the Court. [9]

In her best-known opinion of her first term, Mississippi University For Women V. Hogan, 458 U.S. 718 (1982) O’Connor ruled that a state-supported university in Mississippi could not constitutionally exclude men from its school of nursing under equal protection clause of the Fourteenth Amendment. In other opinions, O'Connor has endorsed affirmative action for minorities if "narrowly tailored" to correct a demonstrated wrong, but not otherwise. In City of Richmond v. J. A. Croson Co., 488 U.S. 469 O'Connor's opinion for the Court concluded that government programs setting aside a fixed percentage of public contracts for minority businesses violate equal protection. [11]

This paper presents a collection of Justice O’Connor’s writings over the last decade in cases related to Title VII of the Civil Rights Act of 1964 (Title VII), Age Discrimination in Employment Act of 1967 (ADEA) and Americans with Disability Act of 1990 (ADA).

2. O’Connor on Title VII-gender discrimination

PRICE WATERHOUSE v. HOPKINS, 490 U.S. 228

Supreme court ruled that an employer shown to have considered gender in making employment decision has to prove by preponderance of evidence that decision would have been same absent such consideration.

O’Connor wrote,” I believe there are significant differences between shifting the burden of persuasion to the employer in a case resting purely on statistical proof as in the disparate impact setting and shifting the burden of persuasion in a case like this one, where an employee has demonstrated by direct evidence that an illegitimate factor played a substantial role in a particular employment decision.”[1]

In her concurring opinion, O’Connor supplemented the McDonnell Douglas burden-shifting framework [2] by defining a threshold standard for shifting the burden of persuasion form the plaintiff to the defendant. O’Connor wrote,” The plaintiff must produce evidence sufficient to show that an illegitimate criterion was a substantial factor in the particular employment decision such that a reasonable fact finder could draw an inference that the decision was made "because of" the plaintiff's protected status. Only then would the burden of proof shift to the defendant to prove that the decision would have been justified by other, wholly legitimate considerations. “[1]

“The structure of the presentation of evidence in an individual disparate treatment case should conform to the general outlines we established in McDonnell Douglas [2] and Burdine. First, the plaintiff must establish the McDonnell Douglas prima facie case by showing membership in a protected group, qualification for the job, rejection for the position, and that after rejection the employer continued to seek applicants of complainant's general qualifications. The plaintiff should also present any direct evidence of discriminatory animus in the decisional process. The defendant should then present its case, including its evidence as to legitimate, nondiscriminatory reasons for the employment decision. As the dissent notes, under this framework, the employer "has every incentive to convince the trier of fact that the decision was lawful." citing Burdine, 450 U.S. 258. Once all the evidence has been received, the court should determine whether the McDonnell Douglas or Price Waterhouse framework properly applies to the evidence before it. If the plaintiff has failed to satisfy the Price Waterhouse threshold, the case should be decided under the principles enunciated in McDonnell Douglas and Burdine with the plaintiff bearing the burden of persuasion on the ultimate issue whether the employment action was taken because of discrimination.”[1]

“In the context of this case, a mere reference to "a lady candidate" might show that gender "played a role" in the decision, but by no means could support a rational fact finder’s inference that the decision was made "because of" sex. What is required is what Ann Hopkins showed here: direct evidence that decision makers placed substantial negative reliance on an illegitimate criterion in reaching their decision.”

“On remand, the District Court should determine whether Price Waterhouse has shown by a preponderance of the evidence that if gender had not been part of the process, its employment decision concerning Ann Hopkins would nonetheless have been the same.”[1]

3. O’Connor on ADEA

REEVES v. SANDERSON PLUMBING PRODUCTS, INC. 520 U.S. 133

In this case O’Connor delivered the opinion for a unanimous Court reversing the Fifth Circuit Court of Appeal’s decision. O’Connor writes “A plaintiff’s prima facie case of discrimination (as defined in McDonnell Douglas Corp. v. Green [2], 411 U.S. 792, 802, and subsequent decisions), combined with sufficient evidence for a reasonable fact finder to reject the employer’s nondiscriminatory explanation for its decision, may be adequate to sustain a finding of liability for intentional discrimination under the ADEA. In this case, Reeves established a prima facie case and made a substantial showing that respondent’s legitimate, nondiscriminatory explanation, i.e., his shoddy record keeping, was false. He offered evidence showing that he had properly maintained the attendance records in question and that cast doubt on whether he was responsible for any failure to discipline late and absent employees. In holding that the evidence was insufficient to sustain the jury’s verdict, the Fifth Circuit ignored this evidence, as well as the evidence supporting Reeves’ prima facie case, and instead confined its review of the evidence favoring Reeves to that showing that Chesnut (whom Reeves described as wielding “absolute power” within the company) had directed derogatory, age-based comments at Reeves, and that Chesnut had singled him out for harsher treatment than younger employees. It is therefore apparent that the court believed that only this additional evidence of discrimination was relevant to whether the jury’s verdict should stand. In so reasoning, the court misconceived the evidentiary burden borne by plaintiffs who attempt to prove intentional discrimination through indirect evidence. “[3]

“Respondent was not entitled to judgment as a matter of law under the particular circumstances presented here. Rule 50 requires a court to render judgment as a matter of law when a party has been fully heard on an issue, and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue. The standard for judgment as a matter of law under Rule 50 mirrors the standard for summary judgment under Rule 56. Thus, the court must review all of the evidence in the record, drawing all reasonable inferences in favor of the nonmoving party, but making no credibility determinations or weighing any evidence. The latter functions, along with the drawing of legitimate inferences from the facts, are for the jury, not the court. “[3]

4. O’Connor on ADA

RANDON BRAGDON, PETITIONER v. SIDNEY ABBOTT 524 U.S. 624

Rehabilitation Act of 1973 regulations define “physical or mental impairment” to mean “any physiological disorder or condition … affecting … the … body[’s] … hemic and lymphatic [systems].” HIV infection falls well within that definition. [4] But will an HIV infected person who shows no signs of disability be covered under Americans with Disabilities Act of 1990 (ADA)? ADA’s language defined disability as the existence of “a physical … impairment that substantially limits one or more of [an individual’s] major life activities.” [4] If the HIV infected person has not manifested any symptoms that impair his major life activities- caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working -as listed in the ADA, will he or she be denied protection under ADA?

This issue was answered by the U.S. Supreme Court in RANDON BRAGDON, PETITIONER v. SIDNEY ABBOTT (1998). The court held that the respondent who was infected with the human immunodeficiency virus (HIV), but had not manifested its most serious symptoms could be covered under Americans with Disabilities Act of 1990 (ADA). Delivering the opinion of the Court, Justice J. Kennedy wrote “Because ADA expressly provides that “nothing [herein] shall be construed to apply a lesser standard than…under…the …Rehabilitation Act…or the regulations issued…pursuant to [it],” this Court must construe the ADA to grant at least as much protection as the regulations implementing the Rehabilitation Act.” [4] O’Connor concurred in the judgment.

Justice J. Kennedy went on to write further that the ability to reproduce and bear children constitutes a “major life activity” under the ADA. His opinion reads,”The life activity upon which respondent relies, her ability to reproduce and to bear children, constitutes a “major life activity” under the ADA. The plain meaning of the word “major” denotes comparative importance and suggests that the touchstone is an activity’s significance. Reproduction and the sexual dynamics surrounding it are central to the life process itself. Petitioner’s claim that Congress intended the ADA only to cover those aspects of a person’s life that have a public, economic, or daily character founders on the statutory language. Nothing in the definition suggests that activities without such a dimension may somehow be regarded as so unimportant or insignificant as not to be “major.” This interpretation is confirmed by the Rehabilitation Act regulations, which provide an illustrative, no exhaustive list of major life activities. Inclusion on that list of activities such as caring for one’s self, performing manual tasks, working, and learning belies the suggestion that a task must have a public or economic character. On the contrary, the regulations support the inclusion of reproduction, which could not be regarded as any less important than working and learning.” [4]

O’Connor filed a dissent to this view stating that,”In my view, the act of giving birth to a child, while a very important part of lives of many women, is not generally the same as the representative major life activities of all persons - caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working -as listed in regulations relevant to Americans with Disability Act of 1990. Based on that conclusion, there is no need to address whether other aspects of intimate or family relationships not raised in this case could constitute major life activities; nor is there a reason to consider whether HIV status would impose a substantial limitation on one’s ability to reproduce if reproduction was a major life activity.” [4]

5. O’Connor on Title VII-Abusive work environment

HARRIS v. FORKLIFT SYSTEMS, INC. 510 U.S. 17

Petitioner Harris sued her former employer, respondent Forklift Systems, Inc., claiming that the conduct of Forklift's president toward her constituted "abusive work environment" harassment because of her gender in violation of Title VII of the Civil Rights Act of 1964. Declaring this to be "a close case," the District Court found, among other things, that Forklift's president often insulted Harris because of her gender and often made her the target of unwanted sexual innuendos. However, the court concluded that the comments in question did not create an abusive environment because they were not "so severe as to . . . seriously affect [Harris'] psychological well being" or lead her to "suffe[r] injury." The Court of Appeals affirmed. U.S. Supreme Court reversed and remanded. [5]

O’Connor delivered the opinion for a unanimous Court writing, “To be actionable as "abusive work environment" harassment, conduct need not "seriously affect [an employee's] psychological well being" or lead the plaintiff to "suffe[r] injury. The applicable standard, here reaffirmed, is stated in Meritor Savings Bank v. Vinson [6], 477 U.S. 57: Title VII is violated when the workplace is permeated with discriminatory behavior that is sufficiently severe or pervasive to create a discriminatorily hostile or abusive working environment. This standard requires an objectively hostile or abusive environment-- one that a reasonable person would find hostile or abusive--as well as the victim's subjective perception that the environment is abusive. Whether an environment is "hostile" or "abusive" can be determined only by looking at all the circumstances, which may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance. The effect on the employee's psychological well being is relevant in determining whether the plaintiff actually found the environment abusive. But while psychological harm, like any other relevant factor, may be taken into account, no single factor is required.” [5]

6. O’Connor on ADEA

HAZEN PAPER CO. et al. v. BIGGINS 507 U.S. 604

Petitioners fired respondent Biggins when he was 62 years old and apparently a few weeks short of the years of service he needed for his pension to vest. The District Court granted petitioners' motion for judgment notwithstanding the jury verdict on a willful violation of the Age Discrimination in Employment Act of 1967 (ADEA). But the Court of Appeals reversed, giving considerable emphasis to evidence of pension interference in upholding ADEA liability and finding that petitioners' conduct was willful because, under the standard of Trans World Airlines, Inc. v. Thurston [7], 469 U.S. 111, 128, they knew or showed reckless disregard for the matter of whether their conduct contravened the ADEA. [8]

On delivering the opinion for a unanimous Court, O’Connor wrote,”An employer does not violate the ADEA by interfering with an older employee's pension benefits that would have vested by virtue of the employee's years of service. In a disparate treatment case, liability depends on whether the protected trait--under the ADEA, age--actually motivated the employer's decision. When that decision is wholly motivated by factors other than age, the problem that prompted the ADEA's passage--inaccurate and stigmatizing stereotypes about older workers' productivity and competence--disappears. Thus, it would be incorrect to say that a decision based on years of service--which is analytically distinct from age--is necessarily age based.”[8]

“The Thurston "knowledge or reckless disregard" standard for liquidated damages applies not only where the predicate ADEA violation is a formal, facially discriminatory policy, as in Thurston, but also where it is an informal decision by the employer that was motivated by the employee's age. The distinction between the formal, publicized policy in Thurston and the undisclosed factor here is not such a difference, since an employer's reluctance to acknowledge its reliance on the forbidden factor should not cut against imposing a penalty. Once a "willful" violation has been shown, the employee need not additionally demonstrate that the employer's conduct was outrageous, provide direct evidence of the employer's motivation, or prove that age was the predominant rather than a determinative factor in the employment decision.”[8]

“The foregoing holding does not preclude the possibility of liability where an employer uses pension status as a proxy for age, of dual liability under the Employee Retirement Income Security Act of 1974 and the ADEA, or of liability where vesting is based on age rather than years of service. Because the Court of Appeals cited additional evidentiary support for ADEA liability, this case is remanded for that court to reconsider whether the jury had sufficient evidence to find such liability.”[8]

7. Conclusion

“More than two decades after President Ronald Reagan made her the first woman on the Supreme Court, O'Connor, 72, may be a bigger celebrity and a more powerful influence on American law and society than ever before. On the most contentious social issues facing American society, she continues to cast what is frequently the deciding vote on a nine-member court often split between liberals and conservatives. Even though none of the other justices agree completely with her views, they in effect become the law because of her position near the center of the Court's ideological spectrum. As O'Connor goes, so goes the Court. [10]

Legal scholars have had difficulty categorizing O'Connor's jurisprudence. Her opinions are conservative and attentive to detail, but also open-minded; they reflect no profound ideology and rarely contain any sweeping rhetoric. Critics say that her opinions have no passion, no lofty vision, and lack a personal tone. She is described as a justice "who looks to resolve each case and no more, one with no overarching philosophy that might preordain a result."[11]

As a jurist, Justice O'Connor has refused to impose a "grand Unified Theory," her own phrase, on each area of the law. In contrast to Justice Scalia, who is more inclined to look for a "bright line rule" to decide categories of cases, Justice O'Connor is completely wedded to the Constitution's "case and controversy" requirement. That requirement forbids "advisory opinions" on the constitutionality of possible future government acts, and limits federal judges to deciding only the cases in front of them. [13]

Practicing "judicial minimalism", she does not want the Court to answer questions not raised in the case. And she remains as noncommittal as possible: Time and again, she has signed on to narrow rulings crafted according to the facts of a particular case, leaving open the option of another incremental holding later on. In her words, “The rule of law must also be flexible enough to adapt to different circumstances." [10]

Justice O'Connor has been a leader on the Court in endorsing legal rules that respect states' rights — unsurprisingly, since the Justice, as a former Arizona state legislator, knows firsthand the states' needs and capabilities. But she has also been a moderate on other issues — such as the right to abortion, church-state separation, and gender discrimination — on which a contemporary "litmus test" Republican would be likely to take a much harder line. [13]

In her Senate confirmation hearings, when asked how she wanted to be remembered, O'Connor replied: "Ah, the tombstone question. I hope it says, 'Here lies a good judge.'"[11]. Her recent memoir, Lazy B [12], goes a long way to illuminate the forces that created this remarkable person.

Bibliography

[1] Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)

(http://laws.findlaw.com/us/490/228.html)

[2] McDonnell Douglas Corp. v. Green, 411 U.S. 792

(http://laws.findlaw.com/us/411/792.html)

[3] Reeves, Roger v. Sanderson Plumbing Products, 520 U.S. 133 (2000), 06/12/00

(http://supct.law.cornell.edu/supct/html/99-536.ZO.html)

[4] Bragdon v. Abbott, 524 U.S. 624 (1998), 06/25/98 (http://supct.law.cornell.edu/supct/html/97-156.ZX1.html)

[5] Harris v. Forklift Systems Inc., 510 U.S. 17 (1993), 11/09/93

(http://supct.law.cornell.edu/supct/html/92-1168.ZO.html)

[6] Meritor Savings Bank v. Vinson, 477 U.S. 57

(http://laws.findlaw.com/us/477/57.html)