Indiana Law Review Shifting Burdens and the Americans with Disabilities Act: Why McDonnellDouglas Should Apply to the ADA Timothy A. Ogden* I do not choose to be a common man. It is my right to be uncommon — if I can. I seek opportunity — not security. I do not wish to be a kept citizen, humbled and dulled by having the state look after me. I want to take the calculated risk; to dream and to build, to fail and to succeed. I refuse to barter incentive for a dole. ... It is my heritage to stand erect, proud and unafraid; to think and act for myself, enjoy the benefit of my creations and to face the world boldly and say, this I have done. For our disabled millions, for you and me, all this is what it means to be an American.' Introduction Like Tide Vll of the Civil Rights Act of 1964 (Title Vll),^ the Age Discrimination in Employment Act of 1967 (ADEA),'' and the Rehabilitation Act of 1973,"^ the Americans with Disabilities Act of 1990 (ADA)^ provides protection against discrimination for many Americans. What is not clear, however, is how the burdens of production and persuasion are to be allocated between and among the parties in an ADA case brought under a disparate treatment theory of discrimination.^ This Note will examine that issue. Specifically, it will provide a brief overview of the history, purposes, and coverage of the ADA, Tide VII, the Rehabilitation Act, and the ADEA. Next, it will examine the development of the burden-shifting framework established by the Supreme Court for Tide VII lawsuits, and it will analyze the various approaches to this issue utilized in * Assistant Professor of Economics & Business, Manchester College; J.D. Candidate, 1996, Indiana University School of Law—Indianapolis; B.A., 1987, Manchester College; M.B.A., 1989, Peter F. Drucker Graduate Management Center, Claremont Graduate School. 1 . Lowell P. Weicker, Jr., Historical Background of the Americans with Disabilities Act, 64 Temp. L. Rev. 387, 392 (1991) (quoting Dr. Henry Viscardi, former member of the National Council on the Handicapped). 2. 42 U.S.C. §§ 2000e-l to 2000e-17 (1988 & Supp. V 1993). 3. 29 U.S.C. §§ 621-634 (1988 & Supp. V 1993). 4. 29 U.S.C. §§ 701-796 (1988 & Supp. V 1993). 5. 42 U.S.C. §§ 12101-12213 (Supp. V 1993). 6. In a disparate treatment case, plaintiffs allege that they were treated less favorably than others because of impermissible factors such as race, color, reUgion, national origin, or sex. Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 985-86 (1988). This type of suit is to be distinguished from disparate impact actions, which involve employment practices that are facially neutral, but which have adverse effects on protected groups. Id. at 986. Disparate treatment cases require the plaintiff to show that the employer possessed a discriminatory intent or motive, but this showing is not required in disparate impact cases. Id. at 986-87. See also Harper v. Godfrey Co., 839 F. Supp. 583, 596 (E.D. Wis. 1993), ajfd in part, rev'd in part, 45 F.3d 143 (7th Cir. 1995). The argument presented in this Note only addresses disparate treatment suits where the plaintiff possesses less than the substantial amount of evidence of discriminatory intent which would be required in order for the suit to qualify as a mixed motives claim under Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (partially superseded by 42 U.S.C. § 2000e-2(m) (Supp. V 1993) as stated in Hook v. Ernst & Young, 28 F.3d 366, 371 (3rd Cir. 1994)). 1 80 INDIANA LAW REVIEW [Vol. 29: 1 79 Rehabilitation Act cases. Finally, this Note will review the current case law addressing the allocation of burdens under the ADA, and it will explore whether the burden-shifting framework established in McDonnell Douglas Corp. v. Green' should be utilized in discrimination suits brought under the ADA.** I. Americans WITH Disabilities Act A. History The Americans with Disabilities Act of 1990 was originally sponsored by Lowell P. Weicker, Jr. in the Senate*^ and by Tony Coelho in the House of Representatives.'" Although people may believe that little was done to protect disabled persons prior to the passage of this law, the federal government actually addressed disability discrimination in a number of different contexts prior to enacting the ADA." However, despite those efforts, disabled Americans remained unprotected in areas where other types of discrimination were prohibited.'^ Some efforts were made to amend Title VII of the Civil Rights Act of 1964 to include disabled persons among the protected groups, but to no avail. '^ However, in 1984, amendments to the Rehabilitation Act of 1973 re-established the National Council on the Handicapped, which subsequently produced a report that became a catalyst for action, leading to the introduction of the ADA in Congress. '"^ B. Purposes and Coverage Congress found that forty-three million Americans have at least one physical or mental disability'^ and that society has treated this group of people 7. 411 U.S. 792(1973). 8. "Neither the Supreme Court nor the Third Circuit has set out the elements of a prima facie case of discrimination under the Americans with Disabilities Act. However, cases decided under Title VII provide in pari materia guidance." Doe v. Kohn Nast & Graf, P.C, 862 F. Supp. 1310, 1318 n.5 (E.D. Pa. 1994). 9. Weicker, supra note 1, at 387. 10. Mat 391. 11. Id. at 387-89 (discussing the Act of June 10, 1948, the Architectural Barriers Act of 1968, the Rehabilitation Act of 1 973, the Education of All Handicapped Children Act, and the Civil Rights Restoration Act of 1987). 12. Disabled Americans were not protected from discrimination in areas such as private employment, public accommodations, transportation, state and local activities, or state and local services. Id. at 389. 13. In May 1977, approximately 3,700 delegates from all parts of the United States attended the White House Conference on Handicapped Individuals. At that conference the delegates agreed upon a resolution that "mandated amendment of all sections of the Civil Rights Act of 1964 ... to include persons with physical or mental disabilities as a separate, protected group." Such initiatives, however, were not acted upon. Id. 14. Congress asked the National Council on the Handicapped to study the federal laws and programs related to protection of individuals with disabilities and to issue a report recommending legislation aimed at improving those laws and programs. In February, 1986, the Council issued its landmark report. Toward Independence. It contained forty-five legislative recommendations, and the ADA was at the top of the list. Id. at 390. 15. 42 U.S.C. § 12101(a)(1) (Supp. V 1993). People have "tended to isolate and segregate individuals 1995] ADA SHIFTING BURDENS 181 unfairly.'^' In an attempt to remedy these disparities, Congress enacted the Americans with Disabilities Act.'^ The ADA provides extensive protection from discrimination for disabled individuals in a variety of contexts,"^ and it casts a wide net to cover many forms of employment discrimination.'^ Among other things, it provides that no covered entity ^" may discriminate^' against disabled individuals^^ who are quaUfied^^ for a position in with disabilities, and . . . such forms of discrimination against individuals with disabilities continue to be a serious and pei-vasive social problem." Id. § 12101(a)(2). In addition, two-thirds of disabled Americans aged 16 to 64 are unemployed, but 8,200,000 of them want to work; they just cannot find jobs. John J. Murphy, Jr., The Employment Provisions ofthe Americans with Disabilities Act, 8 1 III. B.J. 236, 236 (1993). 16. People with disabilities are intentionally excluded from various activities, they suffer the discriminatory effects of physical barriers, overprotective rules, and exclusionary qualification criteria, and they are relegated to lesser opportunities. Disabled individuals "occupy an inferior status in our society, and [they] are severely disadvantaged socially, vocationally, economically, and educationally." 42 U.S.C. § 12101(a)(5)(6) (Supp. V 1993). 17. The purpose of the ADA is to eliminate "discrimination against individuals with disabilities," ensuring that the federal government has a central role in this process. 42 U.S.C. § 12101(b)(1) (Supp. V 1993). Interestingly, Congress exempted itself from the employment provisions of the ADA. Murphy, supra note 15, at 237. 18. For an in-depth analysis of the enfire act, see John Ricca & Jean C. Gaskill, Americans with Disabilities Act: A Survey of the Law, Regulations and Legislative History, in [2] 2 1st ANNUAL INSTITUTE ON Employment Law 93 (PLl Litig. & Admin. Practice Course Handbook Series No. H-442, 1992). 19. Murphy, .vMpra note 15, at 238. 20. '"[CJovered entity' means an employer, employment agency, labor organization, or joint labor- management committee." 42 U.S.C. § 121 1 1(2) (Supp. V 1993). 2 1 . Among the behaviors considered discriminatory is the failure to provide reasonable accommodations to address the limitations of the otherwise qualified disabled person. 42 U.S.C. § 121 12(b)(5)(A) (Supp. V 1993). Reasonable accommodations would include job restructuring, removing physical barriers, modifying work schedules, making paid or unpaid leave available, reassigning the person to another position, and providing readers or interpreters. Murphy, supra note 15, at 242. However, reasonable accommodation is not mandated if such accommodation would impose an undue hardship on the employer. 42 U.S.C. § 121 12(b)(5)(A) (Supp. V 1993). An undue hardship is "an action requiring significant difficulty or expense . . . ." Id. § 121 1 1(10)(A). However, most of the "necessary accommodations can be accomplished relatively cheaply. The chair of the President's Committee on Employment of People with Disabilities, Harold Russell, testified that for a majority of employees with disabilities, no accommodation will be required, and that many others can be accommodated for less than $50." Murphy, supra note 15, at 242. The purpose of requiring reasonable accommodation is to permit the disabled individual to perform the job's essential functions or to allow that person to enjoy the privileges that nondisabled persons enjoy, such as access to restrooms, cafeterias, etc. Harmer v. Virginia Elec. & Power Co., 831 F. Supp. 1300, 1306 (E.D. Va. 1993) (citing 29 C.F.R. § 1630.2(o) (1993) and 29 C.F.R. app. § 1630.9 (1993)). "In drafting the ADA, Congress consciously drew on the law that developed under the Rehabilitation Act, and the legislative history of the ADA indicates that reasonable accommodation is to be interpreted consistently with the regulations implemented under sections 791 and 794 of the Rehabilitation Act." Id at 1306-07. 22. Disability may fall into one of three categories: a physical or mental impairment substanfially limiting an individual's major life activities; a record of such an impairment; or being viewed as having such an impairment. 42 U.S.C. § 12102(2) (Supp. V 1993). 23. An individual is qualified if he or she is able to perform the essential functions of the position, with 1 82 INDIANA LAW REVIEW [Vol. 29: 179 regard to hiring, advancement opportunities, discharge, compensation, or other areas of employment.^'* The ADA applies to any person employing fifteen or more employees in an industry that affects commerce.^^ Other portions of the ADA provide protection in the areas of public services and transportation,^^ as well as public accommodations and services operated by private entities.^^ II. Similarities of the ADA to Other Non-Discrimination Legislation Title VII of the Civil Rights Act of 1964^^ was intended to encourage employers to hire people based on their job qualifications, rather than on the basis of race, sex, or other factors unrelated to the position,^^ and the Rehabilitation Act ^^ was one of a number of small steps^' intended to provide greater protection to disabled persons from discrimination. Additionally, the ADEA prohibited certain acts of discrimination against older individuals.^^ The similarities among these statutes and the ADA are numerous and or without reasonable accommodation. 42 U.S.C. § 121 1 1(8) (Supp. V 1993). In evaluating whether a disabled person is qualified, one must first determine whether the individual meets the prerequisites for the job "such as possessing the appropriate educational background, employment experience, skiUs, licenses, etc." 29 C.F.R. app. § 1630.2(m) (1993). Next, one must determine whether the person can perform the essential job functions, "with or without reasonable accommodation." Id. 24. 42 U.S.C. § 121 12(a) (Supp. V 1993). See also 29 C.F.R. § 1630.4 (1993). 25. For the first two years following passage of the statute, the ADA applied to employers employing twenty-five or more people. 42 U.S.C. § 121 1 1(5)(A) (Supp. V 1993). 26. 5ee/rf.§§ 12131-12165. 27. 5ee/J.§§ 12181-12189. 28. Title VII made the following unlawful: to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin ... or ... to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin. Id. § 2000e-2(a). 29. Price Waterhouse v. Hopkins, 490 U.S. 228, 243 (1989) (partiaUy superseded by 42 U.S.C. § 2000e- 2(m) (Supp. V 1993) as stated in Hook v. Ernst & Young, 28 F.3d 366, 371 (3rd Cir. 1994)). Interestingly, gender was included in the list of protected categories in an effort to defeat the bill. Price Waterhouse, 490 U.S. at 244 n.9 (citing Charles W. Whalen & Barbara Whalen, The Longest Debate: A Legislative History OF THE 1964 Civil Rights Act 1 15-17 (1985)). 30. The Rehabilitation Act provides: No otherwise qualified individual with a disability in the United States, as defined in section 706(8) of this title, shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service. 29 U.S.C. § 794(a) (1988 & Supp. V 1993). 3 1 . See supra note 1 1 . 32. The ADEA makes it unlawful for an employer "to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with resj)ect to his compensation, terms, conditions, or privileges 1995] ADA SHIFTING BURDENS 183 significant. For example, "the ADA seeks to ensure access to equal employment opportunities based on merit," just as Title VII does.^"^ However, unlike Title VII, which does not permit consideration of personal characteristics such as sex or race in making employment decisions, the ADA requires an employer to consider a disability when the disability affects the applicant's qualifications for the position, i.e., when it creates a barrier to job opportunities.^'* Further, the ADA draws a number of its terms and definitions from Title VII and the Rehabilitation Act,^^ and the "employment decisions covered by this nondiscrimination mandate [are] to be construed in a manner consistent with the regulations implementing section 504 of the Rehabilitation Act of 1973."^^ Finally, the statute expressly provides that Title VII's "powers, remedies, and procedures" apply to the ADA and that the ADA and the Rehabilitation Act are to be handled so as to avoid duplicating efforts or imposing inconsistent or conflicting standards for comparable statutory provisions.^^ III. McDonnell Douglas and Its Progeny: Allocating Burdens of Persuasion AND Production Following the enactment of Title VII, the courts struggled with the allocation of the burdens of persuasion and production between and among the parties in discrimination lawsuits. Finally, in 1973, the United States Supreme Court settled the issue in the seminal case, McDonnell Douglas Corp. v. Green?^ The suit involved an African- American civil rights activist (Green) who was discharged from the McDonnell Douglas Corporation. Green had worked for the company as a mechanic from 1956 until 1964 when he was laid off, apparently as part of a general reduction in force. Green believed that the employment decision was racially motivated, and in protest he illegally participated with other minority group members in parking their cars on the road that led to the corporation's plant, effectively blocking access to the plant during a morning shift change. Green's belief that he had been a victim of discrimination was strengthened the following summer when the company advertised for qualified mechanics. He applied for a position but was not rehired. Green subsequently filed a formal complaint with the Equal Employment Opportunity Commission and later sued under Tide VII of the Civil Rights Act of 1964.^^ McDonnell Douglas denied discriminating against Green, of employment, because of such individual's age." 29 U.S.C. § 623(a)(1) (1988 & Supp. V 1993). 33. 29C.F.R.app.§ 1630(1993). 34. Id. The ADA provides parameters which guide employers in how to account for disabling conditions. Id. 35. See id. app. § 1630.2(a)-(I). 36. Id. app. § 1630.4. 37. 42 U.S.C. § 12117 (Supp. V 1993). 38. 411 U.S. 792(1973). 39. The provision of the statute that was pertinent to the appeal was 42 U.S.C. § 2000e-2(a)(l) (1988 & Supp. V 1993). The Court noted that the purpose of the statute was clear from the language; Congress intended to assure equal employment opportunities and to eliminate the discrimination that led to stratified work environments to the disadvantage of minorities. McDonnell Douglas, 41 1 U.S. at 800. '"What is required by 184 INDIANA LAW REVIEW [Vol. 29: 179 contending that it chose not to rehire him because of his participation in the illegal conduct against the company. The district court dismissed Green's Title VII"*" claim relating to racially discriminatory hiring practices, and the Eighth Circuit reversed."^' However, the court of appeals failed to determine how to allocate the burdens of proof.'^^ The critical issue before the Supreme Court concerned "the order and allocation of proof in a private, non-class action challenging employment discrimination.'"*^ It established a three-step process, clearly delineating each party's burden. First, the plaintiff must establish a prima facie case of discrimination; this can be accomplished by demonstrating the following: (I) that he 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.'*'' Following the plaintiffs showing of a prima facie case, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for its decision.'*^ Finally, the plaintiff must be given an opportunity to demonstrate that the employer' s proffered reason for its decision was a pretext for a discriminatory motive.'*^ Congress is the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification.'" Id. at 801 (quoting Griggs V. Duke Power Co., 401 U.S. 424, 430-31 (1971)). 40. 42 U.S.C. § 2000e-2(a)(l) (1988 & Supp. V 1993). 41 . McDonnell Douglas, 41 1 U.S. at 797. 42. "The two opinions of the Court of Appeals and the several opinions of the three judges of that court attempted, with a notable lack of harmony, to state the applicable rules as to burden of proof and how this shifts upon the making of a prima facie case." Id. at 801 . 43. Id. at 800. 44. Id. at 802. The Court added that the elements necessary to establish a prima facie case would vary depending upon the facts of the lawsuit. Id. at 802 n.l3. 45. Id at 802. 46. Id. at 804. 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 coverup for a racially discriminatory decision." Id. at 805. The federal courts, however, are divided on the issue of what constitutes pretext. Anderson v. Baxter Healthcare Corp., 13 F.3d 1 120, 1 122 (7th Cir. 1994). Three approaches have been developed. Under the "pretext-only" rule, a plaintiff who demonstrates that the employer's articulated reasons for the adverse decision are untrue automatically prevails. Id. Such a finding is comparable to finding intentional discrimination. Id. Under a second version of the "pretext-only" rule, a showing that the employer's proffered reason is not true permits but does not compel the factfinder to infer that the real reason was not permissible under the statute. Id. at 1 122-23. The third approach, "pretext-plus," requires "both a showing that the employer's reasons are false and direct evidence that the employer's real reasons were discriminatory." Id. at 1 123. The Supreme Court appears to prefer the second version of the "pretext-only" rule. Id. "It is not enough ... to J/.vbelieve the employer; the factfinder must believe the plainfiff s explanation of intentional discrimination." St. Mary's Honor Ctr. v. Hicks, 1 13 S. Ct. 2742, 2754 (1993). 1995] ADA SHIFTING BURDENS 185 The Supreme Court further clarified the McDonnell Douglas burden-shifting framework eight years later/^ In Texas Department of Community Affairs v. Burdine, the Court examined whether, after the plaintiff had established a prima facie case, the burden should shift to the defendant to prove by a preponderance of the evidence that legitimate, nondiscriminatory reasons for the decision existed/*^ In Burdine, the plaintiff sued under Title VII, alleging gender discrimination in her employer's failure to promote her. The Fifth Circuit ultimately reversed the district court's conclusion that the defendant had successfully rebutted the plaintiff's prima facie case."*^ However, the Supreme Court vacated the opinion of the court of appeals, ^"holding that the burden that shifts to the defendant is only a burden to rebut the presumption of discrimination established by the plaintiffs prima facie case.^' The defendant may accomplish this task by producing evidence that the employment decision was based on a legitimate, nondiscriminatory reason; the defendant does not have to persuade the court that its proffered reasons actually motivated its behavior.^^ The defendant must merely introduce, through admissible evidence, the reasons for rejecting the plaintiff. If it succeeds in carrying this burden of production,^^ the presumption.^'* of discrimination 47. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981). 48. Id. at 250. 49. Id. at 252. The Fifth Circuit reaffirmed its previous position, namely that a Title VII defendant must prove by a preponderance of the evidence a legitimate, nondiscriminatory reason for its employment decision, and it must also prove that the person hired was better qualified than the plaintiff Id. 50. Id. "The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff" Id. at 253 (citing Board of Trustees of Keene State College V. Sweeney, 439 U.S. 24, 25 n.2 (1978)). The defendant only has to produce evidence which would permit the factfinder to conclude that the rejection or refusal to hire was not motivated by discriminatory animus; what the court of appeals would require exceeds what can be mandated to meet a burden of production. Id. at 257. 51. Id. at 254. Title VII does not provide damages to plaintiffs merely because employers can not prove a legitimate reason for an adverse employment decision. Damages are only awarded to plaintiffs who prove that the employer's action was based upon race or some other prohibited factor. St. Mary's Honor Ctr. v. Hicks, 1 13 S. Ct. 2742, 2756 (1993). "That the employer's proffered reason is unpersuasive, or even obviously contrived, does not necessarily establish that the plaintiffs proffered reason of race is correct. That remains a question for the factfinder to answer . . . ." Id. 52. Burdine, 450 U.S. at 254. 53. The term "burden of proof caused confusion for some time because it was used to describe two different concepts: the burden of persuasion and the burden of production. Director, Office of Workers' Compensation Programs v. Greenwich Collieries, 1 14 S. Ct. 2251, 2255 (1994). See also John W. Strong, McCoRMiCK ON Evidence § 336, at 568 (4th ed. 1992) (describing the two burdens encompassed by the phrase "burden of proof'). Dual use of the term continued into the early twentieth century. Greenwich Collieries, 1 14 S. Ct. at 2255. The Supreme Judicial Court of Massachusetts was a leader in attempting to limit the meaning of the phrase "burden of proof to "burden of persuasion." "'[T]he party whose case requires the proof of [a] fact, has all along the burden of proof '" Id. (quoting Powers v. Russell, 30 Mass. 69, 76 (1833)). The burden of persuasion remains where it started, but once the party proves a prima facie case, the burden of production shifts; the only time the burden of persuasion might shift is in the case of an affirmative defense. Id. (citing Powers, 30 Mass. at 77). The United States Supreme Court adopted the Massachusetts approach in Hill v. Smith, 260 186 INDIANA LAW REVIEW [Vol. 29:179 raised by the plaintiffs prima facie case^^ is rebutted.^^ At this stage the plaintiffs ultimate burden of proving that she was intentionally discriminated against merges with her opportunity to show that the employer's proffered reason for its action was not its true reason. She may accomplish this either by showing that a discriminatory purpose more likely motivated the employer or by showing the employer's articulated reason is not worthy of credence. ^^ IV. Purposes OF THE McDoATA^ELL Do(/GM5 Framework The framework for allocating burdens between and among the parties serves a vaiiety of purposes. First, it requires the plaintiff to distinguish his or her employment situation from legitimate but adverse human resource decisions by eliminating the most common nondiscriminatory reasons for the action.^^ Second, it provides for the possibility that an employer could avoid the time and expense of litigation by filing a motion for summary judgment or a motion to dismiss when the plaintiff cannot make a prima facie showing of U.S. 592 (1923). Greenwich Collieries, 1 14 S. Ct. at 2255. Justice Holmes commented that the distinction between the burden of production and the burden of persuasion '"is now very generally accepted, although often blurred by careless speech.'" Id. (quoting Hill, 260 U.S. at 594). 54. The term "presumption" is "the slipperiest ... of legal terms," second only to its elusive cousin, "burden of proof." Strong, supra note 53, § 342, at 578. Most legal scholars use the word "presumption" to describe a rule which mandates "not only that the establishment of fact B is sufficient to satisfy a party's burden of producing evidence with regard to fact A, but also at least compels the shifting of the burden of producing evidence on the question to the party's adversary." Id. The party against whom the presumption is directed must produce evidence to rebut the presumption, but the burden of persuasion does not shift; it "remains throughout the trial upon the party on whom it was originally cast." Fed. R. Evid. 301. 55. The evidentiary relationship between the presumption arising out of the prima facie case and, consequentially, the defendant's burden of production is traditional at common law. Burdine, 450 U.S. at 256 n.8. 56. Id. at 255. "A satisfactory explanation by the defendant destroys the legally mandatory inference of discrimination arising from the plaintiffs initial evidence." Id. at 256 n. 10. This approach illustrates the widely followed "bursting bubble" theory of presumptions under which the presumption shifts the burden of producing evidence (related to the presumed fact) to the adversary; once that evidence is produced, "the presumption is spent and disappears." Strong, supra note 53, § 344, at 582-83. See also Palucki v. Sears, Roebuck & Co., 879 F.2d 1568, 1570 (7th Cir. 1989) (the presumption is a device for making the defendant speak, and once he does, it falls out); Lawrence v. Northrop Corp., 980 F.2d 66, 69 (1st Cir. 1992) (once the employer articulates a nondiscriminatory reason for its action, the presumption raised by the prima facie case disappears); Guthrie v. Tifco Indus., 941 F.2d 374, 376 (5th Cir. 1991), cert, denied, 503 U.S. 908 (1992) (if the employer offers a legitimate reason for its actions, the presumption dissolves); St. Mary's Honor Ctr. v. Hicks, 1 13 S. Ct. 2742, 2749 (1993) (once the presumption forces the defendant to produce evidence, it "simply drops out of the picture"). Other scholars believe that a presumption should fix the burden of persuasion "on the party contesting the existence of the presumed fact. A principal technical objection to such a rule has been that it requires a 'shift' in the burden of persuasion[,] something that is, by definition of the burden, impossible." Strong, supra note 53, § 344, at 586. 57. Burdine, 450 U.S. at 256. 58. Oxman v. WLS-TV, 846 F.2d 448, 453 (7th Cir. 1988). 1995] ADA SHIFTING BURDENS 187 discrimination.^^ Third, the framework allows discrimination victims "to prevail without presenting any evidence that [the protected characteristic] was a determining factor in the employer's motivation."^" In other words, if the plaintiff fails to discover a "smoking gun," McDonnell Douglas provides another avenue of relief.^' This is important to potential discrimination victims because there will rarely be "'eyewitness' testimony as to the employer's mental processes."^^ In addition, evaluating the burden of production will often help the judge decide whether the litigants have created a triable issue of fact.^^ The Title VII allocation of burdens and the creation of a presumption of discrimination arising out of the plaintiff's prima facie case "is intended progressively to sharpen the inquiry into the elusive factual question of intentional discrimination."^'* The McDonnell Douglas framework is not intended, however, to apply to cases in which the plaintiff presents direct evidence of discrimination.^^ V. Shifting Burdens and The Rehabilitation Act The McDonnell Douglas standard has come to be widely accepted and utilized not only in Title VII suits, but also in ADEA cases^^ and in other situations.^^ The framework 59. fd. 60. La Montagne v. American Convenience Prod., Inc., 750 F.2d 1405, 1409-10 (7th Cir. 1984). Discrimination can be subtle and even unconscious, and the employer who knowingly discriminates will likely not leave written or other records revealing the prohibited motive. Id. at 1410. Further, existing evidence will likely be controlled by the employer, and the employee will probably have trouble acquiring it. Id. "The indirect method compensates for these evidentiary difficulties by permitting the plaintiff to prove his case by eliminating all lawful motivations, instead of proving directly an unlawful motivation." Id. See also Perfetti v. First Nat'l Bank of Chicago, 950 F.2d 449, 451 (7th Cir. 1992), cert, denied, 1 12 S. Ct. 2995 (1992). 61. McCoy V. WGN Continental Broadcasting Co., 957 F.2d 368, 371 (7th Cir. 1992). 62. United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711,716 (1983). 63. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981). 64. Id. The framework, however, is not intended to be inflexible or ritualistic. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978). Instead, it simply provides a logical, orderly method for evaluating the evidence in a discrimination lawsuit. Id. "We have cautioned that these shifting burdens are meant only to aid courts and litigants in arranging the presentation of evidence . . . ." Watson v. Fort Worth Bank & Trust, 487 U.S. 977,986(1988). 65. Trans World AirUnes, Inc. v. Thurston, 469 U.S. 111,121 (1985). The McDonnell Douglas test is designed to ensure that the "'plaintiff [has] his day in court despite the unavailability of direct evidence.'" Id. (quoting Loeb v. Textron, Lie, 600 F.2d 1003, 1014 (1st Cir. 1979)). But see Price Waterhouse v. Hopkins, 490 U.S. 228, 288 (Kennedy, J., dissenting) (partially superseded by 42 U.S.C. § 2000e-2(m) (Supp. V 1993) as stated in Hook v. Ernst & Young, 28 F.3d 366, 371 (3rd Cir. 1994)) (noting that this framework applies to all disparate treatment cases, even where the plaintiff offers direct proof that the employer's action was based on a discriminatory motive). 66. The circuits generally agree that McDonnell Douglas applies to ADEA cases. La Montagne v. American Convenience Prod., Inc., 750 F.2d 1405, 1409 n.l (7th Cir. 1984). See also Konowitz v. Schnadig Corp., 965 F.2d 230, 232 (7th Cir. 1992); Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir. 1992). 67. See Friedel v. City of Madison, 832 F.2d 965, 972 (7th Cir. 1 987) {McDonnell Douglas applies to 188 INDIANA LAW REVIEW [Vol. 29:179 appears to be a useful and helpful tool, and with the exception of the elements required to establish a prima facie case,''^ courts appear to apply it uniformly. However, the McDonnell Douglas approach has not been as widely accepted in Rehabilitation Act cases. Therefore, this Note will examine the Rehabilitation Act in greater detail. Four elements make up a cause of action under section 504 of the Rehabilitation Act,^^ but "the Courts of Appeals have been unable to agree on the proper allocation of burdens of proof in these cases. ^° Disabled individuals face a variety of discriminatory barriers,^' and one view suggests that the type of obstacle confronting the disabled person will affect which analytical framework to use when addressing the allocation of burdens.^^ Thus, while the McDonnell Douglas approach might apply in a so-called "intentional social-bias discrimination" case,^^ the analytical framework might differ in suits peculiar to disability discrimination. Section 504 of the Rehabilitation Act requires an employer to provide reasonable accommodations to persons with disabilities,^'' and the employer who claims that this is not possible bears the burden of proving that fact.^^ After the employer presents evidence that it cannot accommodate the plaintiff, the plaintiff bears the burden of going forward, providing evidence related to his abilities and potential accommodations that might rebut the employer's claim.^^ reverse discrimination claims and to claims of discriminatory application of work rules); Ross v. Communications Satellite Corp., 759 F.2d 355, 365 (4th Cir. 1985) {McDonnell Douglas applies to Title VII retaliation claims). 68. See supra note 44. 69. The plaintiff must show the following: 1) he is disabled under the Act; 2) he is "otherwise qualified" for the position; 3) he was rejected "solely by reason of his disability; and 4) the program was receiving federal assistance. Doherty v. Southern College of Optometry, 862 F.2d 570, 573 (6th Cir. 1989), cert, denied, 493 U.S. 810(1989). 70. Id. In Pushkin v. Regents of Univ. of Colo., 658 F.2d 1372, 1386-87 (10th Cir. 1981), the court concluded that the defendant bears the burden of persuasion on the "otherwise qualified" issue. But on the same issue, in Doe v. New York Univ., 666 F.2d 761, 776-77 (2d Cir. 1981), the court only placed the limited burden of production on the defendant. The court in Doherty declined to comment further on this issue because it was not before the court in that case. Doherty, 862 F.2d at 573. 7 1 . Four types of discriminatory barriers have been identified: " I . Intentional discrimination for reasons of social bias . . . ; 2. neutral standards with disparate impact; 3. surmountable impairment barriers; and 4. insurmountable impairment barriers." Prewitt v. United States Postal Serv., 662 F.2d 292, 305 n.I9 (5th Cir. 1981). 72. The McDonnell Douglas framework is generally applicable to "intentional social-bias discrimination" against the disabled, and Title VII disparate impact jurisprudence is applicable to disparate impact disability discrimination; however, surmountable and insurmountable barriers issues usually apply only to disability discrimination cases and are thus unique. Id. 73. Id. 74. W. at308n.21. 75. The EEOC regulations place the burden of proving that the individual cannot be accommodated on the employer. Id. at 308. "[T]he burden of persuasion in proving inability to accommodate always remains on the employer . . . ." Id. 76. When the reasonable accommodafion issue arises, the employer always bears the burden of persuasion to prove its inability to accommodate, but once the employer has produced credible evidence that such 1995] ADA SHIFTING BURDENS 189 The Second Circuit expanded on these ideas in Gilbert v. FrankJ^ In that case the court pointed out that a quaHfied disabled person is one who, with a reasonable accommodation, can perform the essential job functions at issue.'** Once the applicant establishes that he or she is otherwise qualified by demonstrating an ability to handle the essential functions of the job with reasonable accommodation, the burden shifts to the employer to demonstrate that reasonable accommodation is impossible.'*^ However, regarding other elements of the action, courts cannot agree. For example, the Tenth Circuit in Pushkin v. Regents of University of Colorado concluded that the McDonnell Douglas burden-shifting framework was not an appropriate tool to use in certain Rehabilitation Act cases.**" The Eighth Circuit, however, refused to follow Pushkin, finding that the McDonnell Douglas approach was proper.**' A. The Pushkin Approach Pushkin involved a doctor who sought admission to the University of Colorado's Psychiatric Residency Program. The plaintiff, Pushkin, who suffered from multiple sclerosis, alleged that he was not admitted because he was disabled. He subsequendy sued, claiming that the university violated section 504 of the Rehabilitation Act. The court of appeals addressed a number of issues,^^ ultimately affirming the district court's conclusion that the university had violated the statute.^^ On appeal the university argued that the McDonnell Douglas framework should apply to claims under section 504 of the Rehabilitation Act.**'* It contended that the plaintiff established a prima facie case of discrimination, but that he failed to show pretext following the university's articulation of a legitimate, nondiscriminatory reason for the decision. ^^ The court disagreed, describing the university's characterization of the plaintiffs case as a "straw man," created only so that it could be destroyed.**^ It noted that disability discrimination is usually characterized by "more invidious causative elements"^' accommodation is not possible, "the plaintiff must bear the burden of coming forward with evidence that suggests that accommodation may in fact be reasonably made." Id. at 310. 77. 949 F.2d 637 (2nd Cir. 1991). 78. Mat 641. 79. Id. at 642 (citing Mantolete v. Bolger, 767 F.2d 1416, 1423-24 (9th Cir. 1985); Prewitt, 662 F.2d at 308)). "We note that Mantolete and Prewitt appear to have placed even the initial burden of raising the accommodation issue on the employer, characterizing the plaintiffs burden as one of coming forward 'to rebut' the showing of the employer that no reasonable accommodation is available." Id. 80. Pushkin v. Regents of Univ. of Colo., 658 F.2d 1372, 1386 (10th Cir, 1981). 81. Norcross v. Sneed, 755 F.2d 113, 117 (8th Cir. 1985). 82. In addition to the merits of the case, the court discussed whether section 504 created a private cause of action. Pushkin, 658 F.2d at 1377. It also addressed whether it was necessary for the plaintiff to exhaust other remedies before suing under section 504. Id. at 1380. 83. Mat 1391. 84. Id. at 1384-85. 85. Id. at 1385. 86. Id. 87. Id. 190 INDIANA LAW REVIEW [Vol. 29:179 than other types of discrimination and that it would be more appropriate to analyze a section 504 claim under a disparate impact theory; however, the statute did not provide for such an analysis.^^ Therefore, the court proceeded to focus on the language of the statute to analyze the claim. It concluded that the question was not simply whether Pushkin's disability played a significant role in his rejection; the real concern was whether the rejection was justified after expressly evaluating the implications of his being disabled.*^' The court then turned to the issue of shifting burdens. It stated that it would be wrong to use the McDonnell Douglas disparate treatment test in this case and instead laid out an alternate framework for analysis. Plaintiffs must first establish a prima facie case by showing that they were otherwise qualified disabled persons and that they were rejected under circumstances giving rise to the inference that their rejection was based solely on their disability. Once the plaintiffs establish their prima facie case, the defendants have the burden ofgoingforward and proving that the plaintiffs were not qualified or that their rejection from the program was for reasons other than their disabilities. The plaintiffs then have the burden of going forward with rebuttal evidence showing that the defendants' reasons for rejecting the plaintiffs were based on misconceptions or unfounded factual conclusions, and that the reasons articulated for the rejection encompassed unjustified consideration of the disabilities.^" A troubling aspect of this standard, however, is the court's use of burden of persuasion language in an apparently loose way.^' This position contradicts other courts' views regarding who bears the burden of persuasion and who bears only a burden of production,^^ and the language can lead to confusion. For example, in Nicely v. Rice,^^ the plaintiff sued under the Rehabilitation Act, and the district court granted the defendant's motion for summary judgment, citing the Pushkin test as the appropriate standard for such a case.^"* On appeal the Tenth Circuit affirmed, citing Pushkin. However, it misconstrued 88. Id. But see 29 C.F.R. app. § 1630.15(b-c) (1993) (describing disparate impact defenses to ADA claims). 89. Pushkin, 658 F.2d at 1385-86. The question is whether Dr. Pushkin was qualified for admission to the residency program in spite of his handicap, so that he was wrongfully rejected from the program on the basis of that handicap, or whether Dr. Pushkin's handicap would preclude him from carrying out the responsibilities involved in the residency program and future patient care, so that the University rightfully excluded him from the program after weighing the implications of his disability. Id. at 1386. 90. Id. at 1387 (emphasis added). 91. "The [Pushkin] opinion does not carefully justify this choice of language and ... it is not supported by any discussion " Norcross v. Sneed, 755 F.2d 1 13, 1 18 n.6 (8th Cir. 1985). 92. See Doe v. New York Univ., 666 F.2d 761, 776-77 (2nd Cir. 1981) (the plaintiff bears the ultimate burden of proving by a preponderance of the evidence that he was qualified); Chandler v. City of Dallas, 2 F.3d 1385, 1390(5thCir. 1993), cerf. denied, 114S.Ct. 1386 (1994) (the burden of proof for each element lies with the plaintiff). 93. 60 Empl. Prac. Dec. (CCH) f 42,062 (D. Kan. Dec. 7, 1992), aff'd, 1 F.3d 1249 (10th Cir. 1993). 94. Id. % 74,208. 1995] ADA SHIFTING BURDENS 191 the language^^ of its own decision: "Once the plaintiff estabUshes his prima facie case, the burden shifts to the Defendant to produce evidence that plaintiffs rejection was for reasons other than his handicap. . . . The plaintiff then has the burden of producing rebuttal evidence . . . that the defendant's reasons are pretextual."*^^ A subsequent Sixth Circuit case attempted to justify Pushkin's apparent decision to shift the burden of persuasion, but with little success. In Jasany v. United States Postal Service^ the court noted that the Pushkin opinion modified the McDonnell Douglas framework because disability cases are unique. Persons with disabilities "are expressly rejected for employment on the basis of their handicap, whereas in Title VII cases characteristics such as race or sex are never expressly at issue as legitimate justifications for the plaintiffs rejection. "'^^ This argument is not persuasive. The reason the disability may be considered is that it may bear upon the individual's physical ability to perform the job, i.e., it may impact whether the person is qualified for the position.'^^ This is the only sense in which the disability may be expressly considered, and it does not justify wholesale departure from McDonnell Douglas. B. The Norcross Approach The Eighth Circuit's position, on the other hand, exemplifies the alternate view on the applicability of McDonnell Douglas to section 504 cases.'"" The plaintiff, Norcross, who had been legally blind since childhood, applied for a librarian's position in a public school system. The school board ultimately selected another individual for the position because the members believed that the person they selected was better qualified than the plaintiff.'"' Norcross brought suit under section 504 of the Rehabilitation Act, and when the district court entered judgment for the defendants, she appealed, arguing that the lower court's allocation of the burden of production and the burden of persuasion was improper.'"^ The district court essentially followed the standard established by the Second Circuit in Doe v. New York University}^^ The plaintiff first had to establish a prima facie case;'"'' after she accomplished this, the court shifted the burden of going forward to the 95. See supra note 90 and accompanying text. 96. Nicely v. Rice, 1 F.3d 1249, 1993 WL 298933, at **2 (10th Cir. 1993) (emphasis added). The ultimate burden, the court added, remains with the plaintiff. Id. Although this opinion has no precedential value, it illustrates the difficulties that the Pushkin language presents. See also White v. York Int'l Corp., 45 F.3d 357, 361 (10th Cir. 1995) (noting the Pushkin analysis to be "much like the McDonnell Douglas test" used in other discrimination cases). 97. 755 F.2d 1244 (6th Cir. 1985). 98. Id. at 1250 n.5 (citing Pushkin, 658 F.2d at 1385-86). 99. See infra note 208 and accompanying text. 100. Norcross v. Sneed, 755 F.2d 113 (8th Cir. 1985). 101 . The board based this determination on the other individual's experience as a librarian in a similar sized school and her extensive teaching experience as compared to Norcross's experience as an assistant librarian ten years earlier and her limited teaching experience. Id. at 1 15-16. 102. Mat 116. 103. /J. at 117. 104. Norcross had to demonstrate that she was a disabled individual, that she was otherwise qualified for 192 INDIANA LAW REVIEW [Vol. 29: 179 school system to rebut the presumption of discrimination that followed the establishment of the prima facie case.'"^ When the school system satisfied this requirement, the burden shifted back to the plaintiff (who retained the ultimate burden of persuasion throughout) to prove that her disability was the sole basis for her rejection.'"^ Norcross argued that the lower court erred in only requiring the defendant to articulate a reason for its action. She contended that the school system should have had to prove its defense by a preponderance of the evidence.'"^ The court of appeals did not agree, and it expressly rejected the Pushkin standard.'"*^ It concluded that handling the issue differently "would have impermissibly shifted the burden to the defendants on the ultimate issue — whether handicap was the sole reason for the decision,"'"^ The facts of the case only raised a prima facie inference of discrimination, and it would have been wrong to require the defendant to disprove such an inference by a preponderance of the evidence."" The court in Norcross relied to a great extent on Doe v. New York University.^ ^^ In Doe, the court mentioned the differences between Title VII cases and section 504 claims."^ It noted that the McDonnell Douglas burden shifting framework might be appropriate in a section 504 suit where the defendant disclaimed reliance on the applicant's disability,"'' but the court added that more typically the defendant admits that the disability was a factor in the decision and thus "the order of presentation of proof in such cases cannot be framed in terms of permissible versus impermissible factors."' '" The the position, that she had applied for the librarian's position, and that she had not been selected. Norcross satisfied these requirements. Id. at 1 16 n.3. 1 05. This step effectively narrowed the issue to whether the other individual was selected because she had better qualifications or because Norcross was disabled. Id. at 1 17. 106. Id. at 1 16. 107. Id. at in. 108. "To the extent that Pushkin is inconsistent with our reasoning, we reject its conclusions on this issue." Id. at 1 18 n.6. 109. Matin. 1 10. Id. at 119. "In the handicap context, we deal with shifting burdens not unlike those in Title Vll cases." Id. The legislative history of section 504 does not indicate how Congress intended to allocate the burdens of persuasion and production, but it is noteworthy that the Rehabilitation Act was passed just months after the Supreme Court decided McDonnell Douf^las. "Congress must have been aware that the discrimination law language of Section 504 would have obvious implications for the burden of proof issue." New York State Ass'n for Retarded Children, Inc. v. Carey, 612 F.2d 644, 649 n.5 (2nd Cir. 1979). See also Crawford v. Runyon, 37 F.3d 1338, 1341 (8th Cir. 1994); Ennis v. National Assoc, of Business & Educ. Radio, Inc., 53 F.3d 55, 57-58 (4th Cir. 1995) (both noting that Rehabilitation Act suits are analyzed under the McDonnell Douglm framework). 111. 666 F.2d 761 (2nd Cir. 1981). 1 12. The court noted that section 504 cases do not always lend themselves well to the framework used for the allocations of proof in Title VII cases because in a Rehabilitation Act case, an employer may consider an applicant's disability in determining whether the person is qualified for the job; in Title VII cases, race, color, religion, sex, and national origin cannot be considered in the decision. Id. at 776. 113. Id. 1 14. Id. "The pivotal issue is not whether the handicap was considered but whether under all of the circumstances it provides a reasonable basis for finding the plaintiff not to be qualified or not as well qualified 1995] ADA SHIFTING BURDENS 193 implication here is that McDonnell Douglas would not apply in the "more typical" case, but the framework that the court proceeded to lay out for the allocation of burdens was remarkably similar to the McDonnell Douglas standard,"^ despite the fact that the Doe case involved a defendant who admitted to relying on the plaintiffs disability in making its decision. Further, the court in Doe rejected the use in this context of the Pushkin position regarding shifting the burden of persuasion to the employer."^ It is difficult, therefore, to discern the significance of the distinction between a case where the defendant disclaims relying on the disability and one where the defendant admits considering the disability in conjunction with other factors. This opinion was further muddied by Teahan v. Metro-North Commuter Railroad C