1. Do you think the Court should require actual evidence of discrimination in disparate treatment cases rather than permitting an inference? What are the advantages? Disadvantages?

2. Practically speaking, is an employer’s burden really met after the employer “articulates” a legitimate nondiscriminatory reason for rejecting the employee? Explain.

3. Does the Court say that Green must be kept on in spite of his illegal activities? Discuss.

Issue: The order and allocation of proof in a private, nonclass action challenging employment discrimination.

Facts: Green, an employee of McDonnell Douglas and a black civil rights activist, engaged with others in “disruptive and illegal activity” against his employer in the form of a traffic stall-in. The activity was done as part of Green’s protest that his discharge from McDonnell Douglas was racially motivated, as were the firm’s general hiring practices. McDonnell Douglas later rejected Green’s reemployment application on the ground of the illegal conduct. Green filed a case with the EEOC charging violation of the Title VII of the Civil Rights Act of 1964, sued in U.S. District Court, and also appealed to the U.S. Court of Appeals for the Eighth Circuit.

Decision: The EEOC made no finding on the respondent’s allegation of racial bias under racial bias under 703(a) (1) that prohibits discrimination in any employment decision. However, it did find reasonable cause to believe that the petitioner had violated 704 (a) of the Act that forbids discrimination against applicants or employees for attempting to protest or correct allegedly discriminatory employment conditions.

The respondent then brought suit in the District court. The District court also found that the petitioner’s refusal to rehire the respondent was based solely on the respondent’s participation in the disruptive and illegal activity. The conclusion by the court was that nothing in Title VII or 704 protected “such activity as employed by the plaintiff in the “stall-in” and “lock-in” demonstrations.” On appeal, the Court of Appeals for the Eight Circuit affirmed the 704 (a) ruling, but reversed with respect to 703 (a) (1), holding that an EEOC determination of reasonable cause was not a jurisdictional prerequisite to claiming a violation of that provision in federal court.

The case was remanded. The case is important because it is the first time the U.S. Supreme Court set forth how to prove a disparate treatment case under Title VII.