Disparate treatment claims based on race may be proven either through direct evidence that an employment decision was made base upon race or color or circumstantially.
In Vaughn v. Edel, 918 F.2d 517 (5th Cir. 1990), we see an example of direct evidence that the employee was discharged due to her race.
Facts of the case:
Vaughn, a black female attorney, became an associate contract analyst in Texaco’s Land Department. Her supervisors were Edel and Alvin Earl Hatton, assistant chief contract analyst. Roger Keller was the manager of the Land Department. In Vaughn’s early years with Texaco she was promoted first to contract analyst and then to petroleum contract analyst. During this period she was the highest ranking contract analyst in the department. The day after Vaughn returned from a second maternity leave, Edel complained to Vaughn about the low volume of her prior work and the excessive number of people who visited her office. Vaughn later spoke to Keller about Edel’s criticism. In a memorandum concerning this discussion, Keller wrote that he had told Vaughn that he had been told that Vaughn’s productivity was very low, that he had become aware of the excessive visiting by predominantly blacks in her office behind closed doors, and that the visiting had a direct bearing on her productivity. Keller then told Vaughn, as he noted in his memo, that she was allowing herself to become a black matriarch within Texaco, that this role was preventing her from doing her primary work for the company, and that it must stop. Keller’s remarks offended Vaughn, so she sought the advice of a friend who was an attorney in Texaco’s Legal Department. Keller learned of this meeting and of Vaughn’s belief that he was prejudiced. To avoid charges of race discrimination, Keller, as he later testified, told Edel not have any confrontations with Vaughn about her work. Keller also added that Edel was dissatisfied, let it ride. If it got serious, then see him. Between April 1985 and April 1987 when Vaughn was fired, neither Edel nor Hatton expressed criticism of Vaughn’s work to her. During this period all annual written evaluations of Vaughn’s performance (which, incidentally, Vaughn never saw) were satisfactory. Vaughn also received a merit salary increase, albeit the minimum, for 1986. Keller testified that for several years he had intentionally overstated on Vaughn’s annual evaluations his satisfaction with her performance because he did not have the time to spend going through the procedures which would result from a lower “rating” and which could lead to termination. In 1985-86 Texaco undertook a study to identify activities it could eliminate to save costs. To meet the cost-reduction goal set by that study, the Land Department fired its two “poorest performers,” one of whom was Vaughn, as the “lowest ranked” contract analyst; the other was a white male.
First, officials of the employer made race-related remarks to Vaughn, critical of her being visited by other black employees at her office, rather than telling her they believed her productivity might be adversely affected because she was spending excess time talking to other employees. Then the employer treated Vaughn differently than it treated any white employees by giving her no feedback concerning alleged deficiencies in her work performance prior to discharging her.
Direct evidence of racial discrimination as illustrated by Vaughn may consist of (1) negative racial remarks by persons making decisions that adversely affect an employee of a race referred to by the remarks (2) or evidence that a person or persons who are members of a particular race have been treated differently than comparable persons of a different race. In Vaughn, for example, the black employee was not given feedback concerning her work performance, while all white employees with the same job title and duties did receive feedback allowing them to correct deficiencies. How can the employer defend against direct evidence of a racially discriminatory motive? The employer would have to show that it would have taken the same action against the employee apart from any racial considerations.
Example: A white supervisor constantly making remarks about a black employee as being lazy and a poor worker because all blacks are like that, but then firing the black employee because he was caught stealing. This is assuming that the company has a record of immediately discharging any employee who was caught stealing from the company. Even though the racial remarks are inappropriate, the termination is valid because even if the employee was not black he would have been discharged for his conduct for stealing.
However, the Vaughn case was decided before the enactment of the Civil Rights Act of 1991, which effectively made it more difficult for an employer to defend a race discrimination case where company officials have made racist remarks.
Under the 1991 law, it is no longer enough for an employer to show that it would have taken the same adverse action against an employee regardless of his or her race. Instead, the employer will only be able to defend against direct evidence of discrimination by showing that race was not at all a motivating factor in its decision.
If a plaintiff can show that race was a “motivating factor” in the decision, even if other motivations were also present, the plaintiff will succeed in the case.