U.S. Supreme Court Hazelwood Sch. Dist. v. United States, 433
U.S. 299 (1977) Hazelwood School District v. United
States, No. 76-255 Argued April 27, 1977 Decided June 27, 1977 433
U.S. 299 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE EIGHTH
CIRCUIT Syllabus The United States brought this action against petitioners, the
Hazelwood, Mo., School District, located in St. Louis County, and
various officials, alleging that they were engaged in a "pattern or
practice" of teacher employment discrimination in violation of
Title VII of the Civil Rights Act of 1964, as amended, which became
applicable to petitioners as public employers on March 24, 1972.
The District Court, following trial, ruled that the Government had
failed to establish a pattern or practice of discrimination. The
Court of Appeals reversed, in part on the ground that the trial
court's analysis of statistical data rested on an irrelevant
comparison of Negro teachers to Negro pupils in Hazelwood, instead
of a comparison of Negro teachers in Hazelwood to Negro teachers in
the relevant labor market area, which it found to consist of St.
Louis County and the city of St. Louis, where 15.4% of the teachers
are Negro. In the 1972-1973 and 1973-1974 school years, only 1.4%
and 1.8%, respectively, of Hazelwood's teachers were Negroes, and
this statistical disparity, particularly when viewed against the
background of Hazelwood's teacher hiring procedures, was held to
constitute a prima facie case of a pattern or practice of
racial discrimination. Petitioners contend that the statistical
data on which the Court of Appeals relied cannot sustain a finding
of a violation of Title VII. Held: The Court of Appeals erred in disregarding the
statistical data in the record dealing with Hazelwood's hiring
after it became subject to Title VII, and the court should have
remanded the case to the District Court for further findings as to
the relevant labor market area and for an ultimate determination
whether Hazelwood has engaged in a pattern or practice of
employment discrimination since March 24, 1972. Though the Court of
Appeals was correct in the view that a proper comparison was
between the racial composition of Hazelwood's teaching staff and
the racial composition of the qualified public school teacher
population in the relevant labor market, it erred in disregarding
the possibility that the prima facie statistical proof in
the record might, at the trial court level, be rebutted by
statistics dealing with Hazelwood's post-Act hiring practices such
as with respect to the number of Negroes hired compared Page 433 U. S. 300 to the total number of Negro applicants. For, once a prima
facie case has been established by statistical work-force
disparities, the employer must be given an opportunity to show that
"the claimed discriminatory pattern is a product of pre-Act hiring,
rather than unlawful post-Act discrimination," Teamsters v.
United States, 431 U. S. 324 , 431 U. S. 360 .
The record showed, but the Court of Appeals, in its conclusions,
ignored, that, for the two-year period 1972-1974, 3.7% of the new
teachers hired in Hazelwood were Negroes. The court accepted the
Government's argument that the relevant labor market was St. Louis
County and the city of St. Louis without considering petitioners'
contention that St. Louis County alone (where the figure was 5.7%)
was the proper area because the city of St. Louis attempts to
maintain a 50% Negro teaching staff. The difference between the
figures may well be significant, since the disparity between 3.7%
and 5.7% may be sufficiently small to weaken the Government's other
proof, while the disparity between 3.7% and 15.4% may be
sufficiently large to reinforce it. In determining what figures
provide the most accurate basis for comparison to the hiring
figures at Hazelwood, numerous other factors, moreover, must also
be evaluated by the trial court. Pp. 433 U. S.
306 -313.

															534 F.2d 805, vacated and remanded.

															STEWART, J., delivered the opinion of the Court, in which
BURGER, C.J., and BRENNAN WHITE, MARSHALL, BLACKMUN, POWELL, and
REHNQUIST, JJ., joined. BRENNAN, J., post, p. 433 U. S. 313 ,
and WHITE, J., post, p. 433 U. S. 347 ,
filed concurring opinions. STEVENS, J., filed a dissenting opinion, post, p. 433 U. S.
314 . Page 433 U. S. 301 MR. JUSTICE STEWART delivered the opinion of the Court.

															The petitioner Hazelwood School District covers 78 square miles
in the northern part of St. Louis County, Mo. In 1973, the Attorney
General brought this lawsuit against Hazelwood and various of its
officials, alleging that they were engaged in a "pattern or
practice" of employment discrimination in violation of Title VII of
the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U.S.C. §
2000e et seq. (1970 ed. and Supp. V). [ Footnote 1 ] The complaint asked for an injunction
requiring Hazelwood to cease its discriminatory practices, to take
affirmative steps to obtain qualified Negro faculty members, and to
offer employment and give backpay to victims of past illegal
discrimination.

															Hazelwood was formed from 13 rural school districts between 1949
and 1951 by a process of annexation. By the 1967-1968 school year,
17,550 students were enrolled in the district, of whom only 59 were
Negro; the number of Negro pupils increased to 576 of 25,166 in
1972-1973, a total of just over 2%.

															From the beginning, Hazelwood followed relatively unstructured
procedures in hiring its teachers. Every person requesting an
application for a teaching position was sent one, and completed
applications were submitted to a central personnel Page 433 U. S. 302 office, where they were kept on file. [ Footnote 2 ] During the early 1960's, the personnel
office notified all applicants whenever a teaching position became
available, but, as the number of applications on file increased in
the late 1960's and early 1970's, this practice was no longer
considered feasible. The personnel office thus began the practice
of selecting anywhere from 3 to 10 applicants for interviews at the
school where the vacancy existed. The personnel office did not
substantively screen the applicants in determining which of them to
send for interviews, other than to ascertain that each applicant,
if selected, would be eligible for state certification by the time
he began the job. Generally, those who had most recently submitted
applications were most likely to be chosen for interviews.
[ Footnote 3 ]

															Interviews were conducted by a department chairman, program
coordinator, or the principal at the school where the teaching
vacancy existed. Although those conducting the interviews did fill
out forms rating the applicants in a number of respects, it is
undisputed that each school principal possessed virtually unlimited
discretion in hiring teachers for his school. The only general
guidance given to the principals was to hire the "most competent"
person available, and such intangibles as "personality,
disposition, appearance, poise, voice, articulation, and ability to
deal with people" counted heavily. The principal's choice was
routinely honored by Hazelwood's Superintendent and the Board of
Education.

															In the early 1960's Hazelwood found it necessary to recruit new
teachers, and, for that purpose, members of its staff visited a
number of colleges and universities in Missouri and bordering
States. All the institutions visited were predominantly white, and
Hazelwood did not seriously recruit at either of the Page 433 U. S. 303 two predominantly Negro four-year colleges in Missouri.
[ Footnote 4 ] As a buyer's
market began to develop for public school teachers, Hazelwood
curtailed its recruiting efforts. For the 1971-1972 school year,
3,127 persons applied for only 234 teaching vacancies; for the
1972-1973 school year, there were 2,373 applications for 282
vacancies. A number of the applicants who were not hired were
Negroes. [ Footnote 5 ]

															Hazelwood hired its first Negro teacher in 1969. The number of
Negro faculty members gradually increased in successive years: 6 of
957 in the 1970 school year; 16 of 1,107 by the end of the 1972
school year; 22 of 1,231 in the 1973 school year. By comparison,
according to 1970 census figures, of more than 19,000 teachers
employed in that year in the St. Louis area, 15.4% were Negro. That
percentage figure included the St. Louis City School District,
which in recent years has followed a policy of attempting to
maintain a 50% Negro teaching staff. Apart from that school
district, 5.7% of the teachers in the county were Negro in
1970.

															Drawing upon these historic facts, the Government mounted its
"pattern or practice" attack in the District Court upon four
different fronts. It adduced evidence of (1) a history of alleged
racially discriminatory practices, (2) statistical disparities in
hiring, (3) the standardless and largely subjective hiring
procedures, and (4) specific instances of alleged discrimination
against 55 unsuccessful Negro applicants for teaching jobs.
Hazelwood offered virtually no additional evidence in response,
relying instead on evidence introduced by the Government, perceived
deficiencies in the Government's case, and its own officially
promulgated policy "to hire all Page 433 U. S. 304 teachers on the basis of training, preparation and
recommendations, regardless of race, color or creed." [ Footnote 6 ]

															The District Court ruled that the Government had failed to
establish a pattern or practice of discrimination. The court was
unpersuaded by the alleged history of discrimination, noting that
no dual school system had ever existed in Hazelwood. The statistics
showing that relatively small numbers of Negroes were employed as
teachers were found nonprobative, on the ground that the percentage
of Negro pupils in Hazelwood was similarly small. The court found
nothing illegal or suspect in the teacher hiring procedures that
Hazelwood had followed. Finally, the court reviewed the evidence in
the 55 cases of alleged individual discrimination, and after
stating that the burden of proving intentional discrimination was
on the Government, it found that this burden had not been sustained
in a single instance. Hence, the court entered judgment for the
defendants. 392 F.
Supp. 1276 (ED Mo.).

															The Court of Appeals for the Eighth Circuit reversed. 534 F.2d
805. After suggesting that the District Court had assigned
inadequate weight to evidence of discriminatory conduct on the part
of Hazelwood before the effective date of Title VII, [ Footnote 7 ] the Court of Appeals rejected the
trial court's Page 433 U. S. 305 analysis of the statistical data as resting on an irrelevant
comparison of Negro teachers to Negro pupils in Hazelwood. The
proper comparison, in the appellate court's view, was one between
Negro teachers in Hazelwood and Negro teachers in the relevant
labor market area. Selecting St. Louis County and St. Louis City as
the relevant area, [ Footnote 8 ]
the Court of Appeals compared the 1970 census figures, showing that
15.4% of teachers in that area were Negro, to the racial
composition of Hazelwood's teaching staff. In the 1972-1973 and
1973-1974 school years, only 1.4% and 1.8%, respectively, of
Hazelwood's teachers were Negroes. This statistical disparity,
particularly when viewed against the background of the teacher
hiring procedures that Hazelwood had followed, was held to
constitute a prima facie case of a pattern or practice of
racial discrimination.

															In addition, the Court of Appeals reasoned that the trial court
had erred in failing to measure the 55 instances in which Negro
applicants were denied jobs against the four-part standard for
establishing a prima facie case of individual
discrimination set out in this Court's opinion in McDonnell
Douglas Corp. v. Green, 411 U. S. 792 , 411 U. S. 802 .
[ Footnote 9 ] Applying that Page 433 U. S. 306 standard, the appellate court found 16 cases of individual
discrimination, [ Footnote
10 ] which "buttressed" the statistical proof. Because Hazelwood
had not rebutted the Government's prima facie case of a
pattern or practice of racial discrimination, the Court of Appeals
directed judgment for the Government and prescribed the remedial
order to be entered. [ Footnote
11 ]

															We granted certiorari, 429 U.S. 1037, to consider a substantial
question affecting the enforcement of a pervasive federal law.

															The petitioners primarily attack the judgment of the Court of
Appeals for its reliance on "undifferentiated workforce statistics
to find an unrebutted prima facie case of employment
discrimination." [ Footnote
12 ] The question they raise, in short, is Page 433 U. S. 307 whether a basic component in the Court of Appeals' finding of a
pattern or practice of discrimination -- the comparatively small
percentage of Negro employees on Hazelwood's teaching staff -- was
lacking in probative force.

															This Court's recent consideration in Teamsters v. United
States, 431 U. S. 324 , of
the role of statistics in "pattern or practice" suits under Title
VII provides substantial guidance in evaluating the arguments
advanced by the petitioners. In that case, we stated that it is the
Government's burden to

															"establish by a preponderance of the evidence that racial
discrimination was the [employer's] standard operating procedure --
the regular, rather than the unusual, practice." Id. at 431 U. S. 336 .
We also noted that statistics can be an important source of proof
in employment discrimination cases, since,

															"absent explanation, it is ordinarily to be expected that
nondiscriminatory hiring practices will, in time, result in a
workforce more or less representative of the racial and ethnic
composition of the population in the community from which employees
are hired. Evidence of long-lasting and gross disparity between the
composition of a workforce and that of the general population thus
may be significant even though § 703(j) makes clear that Title VII
imposes no requirement that a workforce mirror the general
population." Id. at 431 U. S. 340 n. 20. See also Arlington Heights v. Metropolitan Housing Dev.
Corp., 429 U. S. 252 , 429 U. S. 266 ; Washington v. Davis, 426 U. S. 229 , 426 U. S.
241 -242. Where gross statistical disparities can be
shown, they alone may, in a proper case, constitute prima
facie proof Page 433 U. S. 308 of a pattern or practice of discrimination. Teamsters,
supra at 431 U. S.
339 .

															There can be no doubt, in light of the Teamsters case,
that the District Court's comparison of Hazelwood's teacher
workforce to its student population fundamentally misconceived the
role of statistics in employment discrimination cases. The Court of
Appeals was correct in the view that a proper comparison was
between the racial composition of Hazelwood's teaching staff and
the racial composition of the qualified public school teacher
population in the relevant labor market. [ Footnote 13 ] See Teamsters, supra at 431 U. S.
337 -338, and n. 17. The percentage of Negroes on
Hazelwood's teaching staff in 1972-1973 was 1.4%, and in 1973-1974
it was 1.8%. By contrast, the percentage of qualified Negro
teachers in the area was, according to the 1970 census, at least
5.7%. [ Footnote 14 ] Although
these differences Page 433 U. S. 309 were, on their face, substantial, the Court of Appeals erred in
substituting its judgment for that of the District Court and
holding that the Government had conclusively proved its "pattern or
practice" lawsuit.

															The Court of Appeals totally disregarded the possibility that
this prima facie statistical proof in the record might at
the trial court level be rebutted by statistics dealing with
Hazelwood's hiring after it became subject to Title VII. Racial
discrimination by public employers was not made illegal under Title
VII until March 24, 1972. A public employer who from that date
forward made all its employment decisions in a wholly
nondiscriminatory way would not violate Title VII even if it had
formerly maintained an all-white workforce by purposefully
excluding Negroes. [ Footnote
15 ] For this reason, Page 433 U. S. 310 the Court cautioned in the Teamsters opinion that, once
a prima facie case has been established by statistical
workforce disparities, the employer must be given an opportunity to
show that "the claimed discriminatory pattern is a product of
pre-Act hiring, rather than unlawful post-Act discrimination." 431
U.S. at 431 U. S.
360 .

															The record in this case showed that, for the 1972-1973 school
year, Hazelwood hired 282 new teachers, 10 of whom (3.5%) were
Negroes; for the following school year, it hired 123 new teachers,
5 of whom (4.1%) were Negroes. Over the two-year period, Negroes
constituted a total of 15 of the 405 new teachers hired (3.7%).
Although the Court of Appeals briefly mentioned these data in
reciting the facts, it wholly ignored them in discussing whether
the Government had shown a pattern or practice of discrimination.
And it gave no consideration at all to the possibility that
post-Act data as to the number of Negroes hired compared to the
total number of Negro applicants might tell a totally different
story. [ Footnote 16 ]

															What the hiring figures prove obviously depends upon the figures
to which they are compared. The Court of Appeals accepted the
Government's argument that the relevant comparison was to the labor
market area of St. Louis County and the city of St. Louis, in
which, according to the 1970 census, 15.4% of all teachers were
Negro. The propriety of that comparison was vigorously disputed by
the petitioners, who urged that, because the city of St. Louis has
made special attempts to maintain a 50% Negro teaching staff,
inclusion of Page 433 U. S. 311 that school district in the relevant market area distorts the
comparison. Were that argument accepted, the percentage of Negro
teachers in the relevant labor market area (St. Louis County alone)
as shown in the 1970 census would be 5.7%, rather than 15.4%.

															The difference between these figures may well be important; the
disparity between 3.7% (the percentage of Negro teachers hired by
Hazelwood in 1972-1973 and 1973-1974) and 5.7% may be sufficiently
small to weaken the Government's other proof, while the disparity
between 3.7% and 15.4% may be sufficiently large to reinforce it.
[ Footnote 17 ] In
determining Page 433 U. S. 312 which of the two figures -- or, very possibly, what intermediate
figure -- provides the most accurate basis for comparison to the
hiring figures at Hazelwood, it will be necessary to evaluate such
considerations as (i) whether the racially based hiring policies of
the St. Louis City School District were in effect as far back as
1970, the year in which the census figures were taken; [ Footnote 18 ] (ii) to what extent
those policies have changed the racial composition of that
district's teaching staff from what it would otherwise have been;
(iii) to what extent St. Louis' recruitment policies have diverted
to the city, teachers who might otherwise have applied to
Hazelwood; [ Footnote 19 ]
(iv) to what extent Negro teachers employed by the city would
prefer employment in other districts such as Hazelwood; and (v)
what the experience in other school districts in St. Louis County
indicates about the validity of excluding the City School District
from the relevant labor market.

															It is thus clear that a determination of the appropriate
comparative figures in this case will depend upon further
evaluation by the trial court. As this Court admonished in Teamsters: "[S]tatistics . . . come in infinite variety. .
. . [T]heir usefulness depends on all of the surrounding facts and
circumstances." 431 U.S. at 431 U. S. 340 .
Only the trial court is in a position to make the appropriate
determination after further findings. And only after such a
determination is made can a foundation be established for deciding
whether or not Hazelwood engaged in a pattern or practice of
racial Page 433 U. S. 313 discrimination in its employment practices in violation of the
law. [ Footnote 20 ]

															We hold, therefore, that the Court of Appeals erred in
disregarding the post-Act hiring statistics in the record, and that
it should have remanded the case to the District Court for further
findings as to the relevant labor market area and for an ultimate
determination of whether Hazelwood engaged in a pattern or practice
of employment discrimination after March 24, 1972. [ Footnote 21 ] Accordingly, the judgment is
vacated, and the case is remanded to the District Court for further
proceedings consistent with this opinion. It is so ordered. [For concurring opinion of MR. JUSTICE WHITE, see post, p 433 U. S.
347 .]

															[ Footnote 1 ]

															Under 42 U.S.C. § 2000e-6(a), the Attorney General was
authorized to bring a civil action

															"[w]henever [he] has reasonable cause to believe that any person
or group of persons is engaged in a pattern or practice of
resistance to the full enjoyment of any of the rights secured by
[Title VII], and that the pattern or practice is of such a nature
and is intended to deny the full exercise of [those rights]."

															"The 1972 amendments to Title VII directed that this function be
transferred as of March 24, 1974, to the Equal Employment
Opportunity Commission, at least with respect to private employers.
§ 2000e-6(c) (1970 ed., Supp. V); see also § 2000e-5(f)(1)
(1970 ed., Supp. V). The present lawsuit was instituted more than
seven months before that transfer."

															[ Footnote 2 ]

															Before 1954 Hazelwood's application forms required designation
of race, and those forms were in use as late as the 1962-1963
school year.

															[ Footnote 3 ]

															Applicants with student or substitute teaching experience at
Hazelwood were given preference if their performance had been
satisfactory.

															[ Footnote 4 ]

															One of those two schools was never visited even though it was
located in nearby St. Louis. The second was briefly visited on one
occasion, but no potential applicant was interviewed.

															[ Footnote 5 ]

															The parties disagree whether it is possible to determine from
the present record exactly how many of the job applicants in each
of the school years were Negroes.

															[ Footnote 6 ]

															The defendants offered only one witness, who testified to the
total number of teachers who had applied and were hired for jobs in
the 1971-1972 and 1972-1973 school years. They introduced several
exhibits consisting of a policy manual, policy book, staff
handbook, and historical summary of Hazelwood's formation and
relatively brief existence.

															[ Footnote 7 ]

															As originally enacted, Title VII of the Civil Rights Act of 1984
applied only to private employers. The Act was expanded to include
state and local governmental employers by the Equal Employment
Opportunity Act of 1972, 86 Stat. 103, whose effective date was
March 24, 1972. See 42 U.S.C. §§ 2000e(a), (b), (f), (h)
(1970 ed., Supp. V).

															The evidence of pre-Act discrimination relied upon by the Court
of Appeals included the failure to hire any Negro teachers until
1969, the failure to recruit at predominantly Negro colleges in
Missouri, and somewhat inconclusive evidence that Hazelwood was
responsible for a 1962 Mississippi newspaper advertisement for
teacher applicants that specified "white only."

															[ Footnote 8 ]

															The city of St. Louis is surrounded by, but not included in, St.
Louis County. Mo.Ann.Stat. § 46.145 (1966).

															[ Footnote 9 ]

															Under McDonnell Douglas, a prima facie case of
illegal employment discrimination is established by showing

															"(i) that [an individual] 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."

															411 U.S. at 411 U. S. 802 .
Upon proof of these four elements, "[t]he burden then must shift to
the employer to articulate some legitimate, nondiscriminatory
reason for the employee's rejection." Ibid. [ Footnote 10 ]

															The Court of Appeals held that none of the 16 prima
facie cases of individual discrimination had been rebutted by
the petitioners. See 534 F.2d at 814.

															[ Footnote 11 ]

															The District Court was directed to order that the petitioners
cease from discriminating on the basis of race or color in the
hiring of teachers, promulgate accurate job descriptions and hiring
criteria, recruit Negro and white applicants on an equal basis,
give preference in filling vacancies to the 16 discriminatorily
rejected applicants, make appropriate backpay awards, and submit
periodic reports to the Government on its progress in hiring
qualified Negro teachers. Id. at 819-820.

															[ Footnote 12 ]

															In their petition for certiorari and brief on the merits, the
petitioners have phrased the question as follows:

															"Whether a court may disregard evidence that an employer has
treated actual job applicants in a nondiscriminatory manner and
rely on undifferentiated workforce statistics to find an unrebutted prima facie case of employment discrimination in violation
of Title VII of the Civil Rights Act of 1964."

															Their petition for certiorari and brief on the merits did raise
a second question:

															"Whether Congress has authority under Section 5 of the
Fourteenth Amendment to prohibit by Title VII of the Civil Rights
Act of 1964 employment practices of an agency of a state government
in the absence of proof that the agency purposefully discriminated
against applicants on the basis of race."

															That issue, however, is not presented by the facts in this case.
The Government's opening statement in the trial court explained
that its evidence was designed to show that the scarcity of Negro
teachers at Hazelwood "is the result of purpose" and is
attributable to "deliberately continued employment policies." Thus
here, as in Teamsters v. United States, 431 U.
S. 324 ,

															"[t]he Government's theory of discrimination was simply that the
[employer], in violation of § 703(a) of Title VII, regularly and
purposefully treated Negroes . . . less favorably than white
persons." Id. at 431 U. S. 335 (footnote omitted).

															[ Footnote 13 ]

															In Teamsters, the comparison between the percentage of
Negroes on the employer's workforce and the percentage in the
general area-wide population was highly probative, because the job
skill there involved -- the ability to drive a truck -- is one that
many persons possess or can fairly readily acquire. When special
qualifications are required to fill particular jobs, comparisons to
the general population (rather than to the smaller group of
individuals who possess the necessary qualifications) may have
little probative value. The comparative statistics introduced by
the Government in the District Court, however, were properly
limited to public school teachers, and therefore this is not a case
like Mayor v. Educational Equality League, 415 U.
S. 605 , in which the racial composition comparisons
failed to take into account special qualifications for the position
in question. Id. at 415 U. S.
620 -621.

															Although the petitioners concede as a general matter the
probative force of the comparative workforce statistics, they
object to the Court of Appeals' heavy reliance on these data on the
ground that applicant-flow data, showing the actual percentage of
white and Negro applicants for teaching positions at Hazelwood,
would be firmer proof. As we have noted, see n 5, supra, there was no clear
evidence of such statistics. We leave it to the District Court on
remand to determine whether competent proof of those data can be
adduced. If so, it would, of course, be very relevant. Cf.
Dothard v. Rawlinson, post at 433 U. S.
330 .

															[ Footnote 14 ]

															As is discussed below, the Government contends that a
comparative figure of 15.4%, rather than 5.7%, is the appropriate
one. See infra at 433 U. S. 310 -312. But even assuming, arguendo, that the 5.7% figure urged by the petitioners is correct, the
disparity between that figure and the percentage of Negroes on
Hazelwood's teaching staff would be more than four-fold for the
1972-1973 school year, and three-fold for the 1973-1974 school
year. A precise method of measuring the significance of such
statistical disparities was explained in Castaneda v.
Partida, 430 U. S. 482 , 430 U. S.
496 -497, n. 17. It involves calculation of the "standard
deviation" as a measure of predicted fluctuations from the expected
value of a sample. Using the 5.7% figure as the basis for
calculating the expected value, the expected number of Negroes on
the Hazelwood teaching staff would be roughly 63 in 1972-1973 and
70 in 1973-1974. The observed number in those years was 16 and 22,
respectively. The difference between the observed and expected
values was more than six standard deviations in 1972-1973 and more
than five standard deviations in 1973-1974. The Court in Castaneda noted that, "[a]s a general rule for such large
samples, if the difference between the expected value and the
observed number is greater than two or three standard deviations,"
then the hypothesis that teachers were hired without regard to race
would be suspect. 430 U.S. at 430 U. S. 497 n. 17.

															[ Footnote 15 ]

															This is not to say that evidence of pre-Act discrimination can
never have any probative force. Proof that an employer engaged in
racial discrimination prior to the effective date of Title VII
might, in some circumstances, support the inference that such
discrimination continued, particularly where relevant aspects of
the decisionmaking process had undergone little change. Cf. Fed.Rule Evid. 406; Arlington Heights v.
Metropolitan Housing Dev. Corp., 429 U.
S. 252 , 429 U. S. 267 ;
1 J. Wigmore, Evidence § 92 (3d ed.1940); 2 id. §§
302-305, 371, 375. And, of course, a public employer even before
the extension of Title VII in 1972 was subject to the command of
the Fourteenth Amendment not to engage in purposeful racial
discrimination.

															[ Footnote 16 ] See n 13, supra, and n 21, infra. But cf. Teamsters, 431 U.S. at 431 U. S.
364 -367.

															[ Footnote 17 ]

															Indeed; under the statistical methodology explained in Castaneda v. Partida, supra at 430 U. S.
496 -497, n. 17, involving the calculation of the
standard deviation as a measure of predicted fluctuations, the
difference between using 15.4% and 5.7% as the area-wide figure
would be significant. If the 15.4% figure is taken as the basis for
comparison, the expected number of Negro teachers hired by
Hazelwood in 1972-1973 would be 43 (rather than the actual figure
of 10) of a total of 282, a difference of more than five standard
deviations; the expected number in 1973-1974 would be 19 (rather
than the actual figure 5) of a total of 123, a difference of more
than three standard deviations. For the two years combined, the
difference between the observed number of 15 Negro teachers hired
(of a total of 405) would vary from the expected number of 62 by
more than six standard deviations. Because a fluctuation of more
than two or three standard deviations would undercut the hypothesis
that decisions were being made randomly with respect to race, 430
U.S. at 430 U. S. 497 n. 17, each of these statistical comparisons would reinforce,
rather than rebut, the Government's other proof. If, however, the
5.7% area-wide figure is used, the expected number of Negro
teachers hired in 1972-1973 would be roughly 16, less than two
standard deviations from the observed number of 10; for 1973-1974,
the expected value would be roughly seven, less than one standard
deviation from the observed value of 5; and, for the two years
combined, the expected value of 23 would be less than two standard
deviations from the observed total of 15. A more precise method of
analyzing these statistics confirms the results of the standard
deviation analysis. See F. Mosteller, R. Rourke, & G.
Thomas, Probability with Statistical Applications 494 (2d
ed.1970).

															These observations are not intended to suggest that precise
calculations of statistical significance are necessary in employing
statistical proof, but merely to highlight the importance of the
choice of the relevant labor market area.

															[ Footnote 18 ]

															In 1970, Negroes constituted only 42% of the faculty in St.
Louis city schools, which could indicate either that the city's
policy was not yet in effect or simply that its goal had not yet
been achieved.

															[ Footnote 19 ]

															The petitioners observe, for example, that Harris Teachers
College in St. Louis, whose 1973 graduating class was 60% Negro, is
operated by the city. It is the petitioners' contention that the
city's public elementary and secondary schools occupy an
advantageous position in the recruitment of Harris graduates.

															[ Footnote 20 ]

															Because the District Court focused on a comparison between the
percentage of Negro teachers and Negro pupils in Hazelwood, it did
not undertake an evaluation of the relevant labor market, and its
casual dictum that the inclusion of the city of St. Louis
"distorted" the labor market statistics was not based upon valid
criteria. 392 F.
Supp. 1276 , 1287 (ED Mo.).

															[ Footnote 21 ]

															It will also be open to the District Court on remand to
determine whether sufficiently reliable applicant-flow data are
available to permit consideration of the petitioners' argument that
those data may undercut a statistical analysis dependent upon
hirings alone.

															MR. JUSTICE BRENNAN, concurring.

															I join the Court's opinion. Similarly to our decision in Dayton Board of Education v. Brinkman, post, p 433 U. S. 406 ,
today's opinion revolves around the relative factfinding roles of
district courts and courts of appeals. It should be plain, however,
that the liberal substantive standards for establishing a Title VII
violation, including the usefulness of statistical proof, are
reconfirmed.

															In the present case, the District Court had adopted a wholly
inappropriate legal standard of discrimination, and therefore Page 433 U. S. 314 did not evaluate the factual record before it in a meaningful
way. This remand in effect orders it to do so. It is my
understanding, as apparently it is MR. JUSTICE STEVENS, post at 433 U. S. 318 n. 5, that the statistical inquiry mentioned by the Court, ante at 433 U. S. 311 n. 17, and accompanying text, can be of no help to the Hazelwood
School Board in rebutting the Government's evidence of
discrimination. Indeed, even if the relative comparison market is
found to be 5.7%, rather than 15.4% black, the applicable
statistical analysis, at most, will not serve to bolster the
Government's case. This obviously is of no aid to Hazelwood in
meeting its burden of proof. Nonetheless, I think that the remand
directed by the Court is appropriate, and will allow the parties to
address these figures and calculations with greater care and
precision. I also agree that, given the misapplication of governing
legal principles by the District Court, Hazelwood reasonably should
be given the opportunity to come forward with more focused and
specific applicant-flow data in the hope of answering the
Government's prima facie case. If, as presently seems
likely, reliable applicant data are found to be lacking, the
conclusion reached by my Brother STEVENS will inevitably be
forthcoming.

															MR. JUSTICE STEVENS, dissenting.

															The basic framework in a pattern-or-practice suit brought by the
Government under Title VII of the Civil Rights Act of 1964 is the
same as that in any other lawsuit. The plaintiff has the burden of
proving a prima facie case; if he does so, the burden of
rebutting that case shifts to the defendant. [ Footnote 2/1 ] In this Page 433 U. S. 315 case, since neither party complains that any relevant evidence
was excluded, our task is to decide (1) whether the Government's
evidence established a prima facie case; and (2), if so,
whether the remaining evidence is sufficient to carry Hazelwood's
burden of rebutting that prima facie case. I The first question is clearly answered by the Government's
statistical evidence, its historical evidence, and its evidence
relating to specific acts of discrimination.

															One-third of the teachers hired by Hazelwood resided in the City
of St. Louis at the time of their initial employment. As Mr.
Justice Clark explained in his opinion for the Court of Appeals, it
was therefore appropriate to treat the city, as well as the county,
as part of the relevant labor market. [ Footnote 2/2 ] Page 433 U. S. 316 In that market, 15% of the teachers were black. In the Hazelwood
District at the time of trial, less than 2% of the teachers were
black. An even more telling statistic is that, after Title VII
became applicable to it, only 3.7% of the new teachers hired by
Hazelwood were black. Proof of these gross disparities was, in
itself, sufficient to make out a prima facie case of
discrimination. See Teamsters v. United States, 431 U. S. 324 , 431 U. S. 339 ; Castaneda v. Partida, 430 U. S. 482 , 430 U. S.
494 -498.

															As a matter of history, Hazelwood employed no black teachers
until 1969. Both before and after the 1972 amendment making the
statute applicable to public school districts, Hazelwood used a
standardless and largely subjective hiring procedure. Since
"relevant aspects of the decisionmaking process had undergone
little change," it is proper to infer that the pre-Act policy of
preferring white teachers continued to influence Hazelwood's hiring
practices. [ Footnote 2/3 ]

															The inference of discrimination was corroborated by post-Act
evidence that Hazelwood had refused to hire 16 qualified black
applicants for racial reasons. Taking the Government's evidence as
a whole, there can be no doubt about the sufficiency of its prima facie case. Page 433 U. S. 317 II Hazelwood "offered virtually no additional evidence in
response," ante at 433 U. S. 303 .
It challenges the Government's statistical analysis by claiming
that the city of St. Louis should be excluded from the relevant
market and pointing out that only 5.7% of the teachers in the
county (excluding the city) were black. It further argues that the
city's policy of trying to maintain a 50% black teaching staff
diverted teachers from the county to the city. There are two
separate reasons why these arguments are insufficient: they are not
supported by the evidence; even if true, they do not overcome the
Government's case.

															The petitioners offered no evidence concerning wage
differentials, commuting problems, or the relative advantages of
teaching in an inner-city school as opposed to a suburban school.
Without any such evidence in the record, it is difficult to
understand why the simple fact that the city was the source of a
third of Hazelwood's faculty should not be sufficient to
demonstrate that it is a part of the relevant market. The city's
policy of attempting to maintain a 50/50 ratio clearly does not
undermine that conclusion, particularly when the record reveals no
shortage of qualified black applicants in either Hazelwood or other
suburban school districts. [ Footnote
2/4 ] Surely not all of the 2,000 black teachers employed by the
city were unavailable for employment in Hazelwood at the time of
their initial hire.

															But even if it were proper to exclude the city of St. Louis from
the market, the statistical evidence would still tend to prove
discrimination. With the city excluded, 5.7% of the teachers in the
remaining market were black. On the basis of a random selection,
one would therefore expect 5.7% of Page 433 U. S. 318 the 405 teachers hired by Hazelwood in the 1972-1973 and
1973-1974 school years to have been black. But instead of 23 black
teachers, Hazelwood hired only 15, less than two-thirds of the
expected number. Without the benefit of expert testimony, I would
hesitate to infer that the disparity between 23 and 15 is great
enough, in itself, to prove discrimination. [ Footnote 2/5 ] It is perfectly clear, however, that
whatever probative force this disparity has, it tends to prove
discrimination, and does absolutely nothing in the way of carrying
Hazelwood's burden of overcoming the Government's prima
facie case.

															Absolute precision in the analysis of market data is too much to
expect. We may fairly assume that a nondiscriminatory selection
process would have resulted in the hiring of somewhere between the
15% suggested by the Government and the 5.7% suggested by
petitioners, or perhaps 30 or 40 black teachers, instead of the 15
actually hired. [ Footnote 2/6 ] On
that assumption, the Court of Appeals' determination that there
were 16 individual cases of discriminatory refusal to hire black
applicants in the post-1972 period seems remarkably accurate.

															In sum, the Government is entitled to prevail on the present
record. It proved a prima facie case, which Hazelwood
failed to rebut. Why, then, should we burden a busy federal court
with another trial? Hazelwood had an opportunity to offer evidence
to dispute the 16 examples of racially motivated refusals to hire;
but as the Court notes, the Court of Appeals has already

															"held that none of the 16 prima facie cases of Page 433 U. S. 319 individual discrimination had been rebutted by the petitioners. See 534 F.2d 805, 814 (CA8)." Ante at 433 U. S. 306 n. 10. Hazelwood also had an opportunity to offer any evidence it
could muster to show a change in hiring practices or to contradict
the fair inference to be drawn from the statistical evidence.
Instead, it "offered virtually no additional evidence in response," ante at 433 U. S.
303 .

															Perhaps "a totally different story" might be told by other
statistical evidence that was never presented, ante at 433 U. S. 310 .
No lawsuit has ever been tried in which the losing party could not
have pointed to a similar possibility. [ Footnote 2/7 ] It is always possible to imagine more
evidence which could have been offered, but, at some point,
litigation must come to an end. [ Footnote 2/8 ] Page 433 U. S. 320 Rather than depart from well established rules of procedure, I
would affirm the judgment of the Court of Appeals.U [ Footnote 2/9 ] Since that judgment reflected
a correct appraisal of the record, I see no reason to prolong this
litigation with a remand neither side requested. [ Footnote 2/10 ]

															[ Footnote 2/1 ]

															"At the initial 'liability' stage of a pattern-or-practice suit,
the Government is not required to offer evidence that each person
for whom it will ultimately seek relief was a victim of the
employer's discriminatory policy. Its burden is to establish a prima facie case that such a policy existed. The burden
then shifts to the employer to defeat the prima facie showing of a pattern or practice by demonstrating that the
Government's proof is either inaccurate or insignificant. An
employer might show, for example, that the claimed discriminatory
pattern is a product of pre-Act hiring, rather than unlawful
post-Act discrimination, or that, during the period it is alleged
to have pursued a discriminatory policy, it made too few employment
decisions to justify the inference that it had engaged in a regular
practice of discrimination." Teamsters v. United States, 431 U.
S. 324 , 431 U. S.
360 .

															[ Footnote 2/2 ]

															"We accept the Government's contention that St. Louis City and
County is the relevant labor market area for our consideration. The
relevant labor market area is that area from which the employer
draws its employees. United States v. Ironworkers Local
86, 443 F.2d 544, 551 n.19 (9th Cir.1971). Of the 176 teachers
hired by Hazelwood between October, 1972, and September, 1973,
approximately 80 percent resided in St. Louis City and County at
the time of their initial employment. Approximately one-third of
the teachers hired during this period resided in the City of St.
Louis and 40 percent resided in areas of St. Louis County other
than the Hazelwood District."

															534 F.2d 805, 811-812, n. 7 (1976).

															It is noteworthy that, in the Court of Appeals, Chief Judge
Gibson, in dissent, though urging -- as Hazelwood had in the
District Court -- that the labor market was even broader than the
Government contended, id. at 821, did not question the
propriety of including the city in the same market as the county, see Defendants' Brief and Memorandum in Support of Its
Proposed Findings of Fact and Conclusions of Law, filed on Aug. 21,
1974, in Civ.Act. No. 73-C-553(A) (ED Mo.), p. 24. In this Court,
petitioners had abandoned any argument similar to that made
below.

															[ Footnote 2/3 ]

															Proof that an employer engaged in racial discrimination prior to
the effective date of the Act creates the inference that such
discrimination continued

															"particularly where relevant aspects of the decisionmaking
process [have] undergone little change. Cf. Fed.Rule Evid.
406; Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S.
252 , 429 U. S. 267 ; 1 J. Wigmore,
Evidence § 92 (3d ed.1940); 2 id. §§ 302-305, 371, 375.
And, of course, a public employer even before the extension of
Title VII in 1972 was subject to the command of the Fourteenth
Amendment not to engage in purposeful racial discrimination." Ante at 433 U. S.
309 -310, n. 15.

															Since Hazelwood's hiring before 1972 was so clearly
discriminatory, there is some irony in its claim that "Hazelwood
continued [after 1972] to select its teachers on the same careful
basis that it had relied on before in staffing its growing system."
Brief for Petitioners 29-30.

															[ Footnote 2/4 ]

															"Had there been evidence obtainable to contradict and disprove
the testimony offered by [the Government], it cannot be assumed
that the State would have refrained from introducing it." Pierre v. Louisiana, 306 U. S. 354 , 306 U. S.
361 -362.

															[ Footnote 2/5 ]

															After I had drafted this opinion, one of my law clerks advised
me that, given the size of the two-year sample, there is only about
a 5% likelihood that a disparity this large would be produced by a
random selection from the labor pool. If his calculation (which was
made using the method described in H. Blalock, Social Statistics
151-173 (1972)) is correct, it is easy to understand why Hazelwood
offered no expert testimony.

															[ Footnote 2/6 ]

															Some of the other school districts in the county have a 10%
ratio of blacks on their faculties. See Plaintiff's
Exhibit 54 in Civ.Act. No. 73-C553(A) (ED Mo.1975); Brief for
United States 30 n. 30.

															[ Footnote 2/7 ]

															Since Hazelwood failed to offer any "applicant-flow data" at the
trial, and since it does not now claim to have any newly discovered
evidence, I am puzzled by MR. JUSTICE BRENNAN's explanation of the
justification for a remand. Indeed, after the first trial was
concluded, Hazelwood emphasized the fact that no evidence of this
kind had been presented; it introduced no such evidence itself. It
stated:

															"There is absolutely no evidence in this case that provides any
basis for making a comparison between black applicants and white
applicants and their treatment by the Hazelwood School District
relative to hiring or not being hired for a teaching position."

															Defendants' Brief and Memorandum in Support of Its Proposed
Findings of Fact and Conclusions of Law, supra, 433
U.S. 299 fn2/2|>n. 2, at 22.

															[ Footnote 2/8 ]

															My analysis of this case is somewhat similar to MR. JUSTICE
REHNQUIST's analysis in Dothard v. Rawlinson: "If the defendants in a Title VII suit believe there to be any
reason to discredit plaintiffs' statistics that does not appear on
their face, the opportunity to challenge them is available to the
defendants just as in any other lawsuit. They may endeavor to
impeach the reliability of the statistical evidence, they may offer
rebutting evidence, they may disparage in arguments or in briefs
the probative weight which the plaintiffs' evidence should be
accorded. Since I agree with the Court that appellants made
virtually no such effort, . . . I also agree with it that the
District Court cannot be said to have erred as a matter of law in
finding that a prima facie case had been made out in the
instant case." Post at 433 U. S.
338 -339 (concurring opinion).

															[ Footnote 2/9 ]

															It is interesting to compare the disposition in this case with
that in Castaneda v. Partida, 430 U.
S. 482 . In Castaneda, as in this case,
"[i]nexplicably, the State introduced practically no evidence," id. at 430 U. S. 498 .
But in Castaneda, unlike the present case, the Court
affirmed the finding of discrimination, rather than giving the
State a second chance at trying its case. (It should be noted that
the Castaneda Court expressly stated that it was possible
that the statistical discrepancy could have been explained by the
State. Id. at 430 U. S.
499 .)

															[ Footnote 2/10 ]

															Hazelwood's brief asks only for a remand "for reconsideration of
the alleged individual cases of discrimination. . . ." Brief for
Petitioners 78. Hazelwood explains:

															"[The question raised in its petition for certiorari is] a
question of law. It is a question of what sort of evidentiary
showing satisfies Title VII. . . . The question is whether, on the
evidence of record, an unrebutted prima facie case was
established."

															Reply Brief for Petitioners 2.


Texas Dept. of Community Affairs v. Burdine

U.S. Supreme Court Texas Dept. of Commun. Affairs v.
Burdine, 450
U.S. 248 (1981) Texas Department of Community
Affairs v. Burdine No. 79-1764 Argued December 9,
1980 Decided March 4, 1981 450
U.S. 248 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE FIFTH
CIRCUIT Syllabus Respondent filed suit in Federal District Court, alleging, inter alia, that her termination of employment with
petitioner was predicated on gender discrimination in violation of
Title VII of the Civil Rights Act of 1964. The District Court found
that the testimony for petitioner sufficiently had rebutted
respondent's allegation of gender discrimination in the decision to
terminate her employment. The Court of Appeals reversed this
finding, holding that the defendant in a Title VII case bears the
burden of proving by a preponderance of the evidence the existence
of legitimate, nondiscriminatory reasons for the employment action,
and also must prove by objective evidence that those hired were
better qualified than the plaintiff, and that the testimony for
petitioner did not carry either of these burdens. Held: When the plaintiff in a Title VII case has proved
a prima facie case of employment discrimination, the
defendant bears only the burden of explaining clearly the
nondiscriminatory reasons for its actions. Pp. 450 U. S.
252 -260.

															(a) As set forth in McDonnell Douglas Corp. v. Green, 411 U. S. 792 , the
basic allocation of burdens and order of presentation of proof in a
Title VII case, is as follows. First, the plaintiff has the burden
of proving by the preponderance of the evidence a prima
facie case of discrimination. Second, if the plaintiff
succeeds in proving the prima facie case, the burden
shifts to the defendant "to articulate some legitimate,
nondiscriminatory reason for the employee's rejection." Id. at 411 U. S. 802 .
Third, should the defendant carry this burden, the plaintiff must
then have an opportunity to prove by a preponderance of the
evidence that the legitimate reasons offered by the defendant were
not its true reasons, but were a pretext for discrimination. The
defendant need not persuade the court that it was actually
motivated by the proffered reasons, but it is sufficient if the
defendant's evidence raises a genuine issue of fact as to whether
it discriminated against the plaintiff. To accomplish this, the
defendant must clearly set forth, through the introduction of
admissible evidence, the reasons for the plaintiff's rejection. Pp. 450 U. S.
252 -256. Page 450 U. S. 249 (b) The Court of Appeals erred by requiring petitioner to prove
by a preponderance of the evidence the existence of
nondiscriminatory reasons for terminating respondent. By doing
this, the court required much more than is required by McDonnell Douglas, supra. and its progeny: it placed on
petitioner the burden of persuading the court that it had
convincing, objective reasons for preferring the chosen applicant
above the respondent. Limiting the defendant's evidentiary
obligation to a burden of production will not unduly hinder the
plaintiff. Pp. 450 U. S.
256 -258.

															(c) The Court of Appeals also erred in requiring petitioner to
prove by objective evidence that the person hired was more
qualified than respondent. It is the plaintiff's task to
demonstrate that similarly situated employees were not treated
equally, but the Court of Appeals' rule would require the employer
to show that the plaintiff's objective qualifications were inferior
to those of the person selected, and, if it cannot, a court would,
in effect, conclude that it has discriminated. The Court of
Appeals' views can also be read as requiring the employer to hire
the minority or female applicant whenever that person's objective
qualifications were equal to those of a white male applicant. But
Title VII does not obligate an employer to accord this preference.
Rather, the employer has discretion to choose among equally
qualified candidates, provided the decision is not based upon
unlawful criteria. Pp. 450 U. S.
258 -259.

															608 F.2d 563, vacated and remanded.

															POWELL, J., delivered the opinion for a unanimous Court.

															JUSTICE POWELL delivered the opinion of the Court.

															This case requires us to address again the nature of the
evidentiary burden placed upon the defendant in an employment Page 450 U. S. 250 discrimination 450 U. S. 42
U.S.C. § 2000e et seq. The narrow question presented is
whether, after the plaintiff has proved a prima facie case
of discriminatory treatment, the burden shifts to the defendant to
persuade the court by a preponderance of the evidence that
legitimate, nondiscriminatory reasons for the challenged employment
action existed. I Petitioner, the Texas Department of Community Affairs (TDCA),
hired respondent, a female, in January, 1972, for the position of
accounting clerk in the Public Service Careers Division (PSC). PSC
provided training and employment opportunities in the public sector
for unskilled workers. When hired, respondent possessed several
years' experience in employment training. She was promoted to Field
Services Coordinator in July, 1972. Her supervisor resigned in
November of that year, and respondent was assigned additional
duties. Although she applied for the supervisor's position of
Project Director, the position remained vacant for six months.

															PSC was funded completely by the United States Department of
Labor. The Department was seriously concerned about inefficiencies
at PSC. [ Footnote 1 ] In
February, 1973, the Department notified the Executive Director of
TDCA, B.R. Fuller, that it would terminate PSC the following month.
TDCA officials, assisted by respondent, persuaded the Department to
continue funding the program, conditioned upon PSC's reforming its
operations. Among the agreed conditions were the appointment of a
permanent Project Director and a complete reorganization of the PSC
staff. [ Footnote 2 ]

															After consulting with personnel within TDCA, Fuller hired Page 450 U. S. 251 a male from another division of the agency as Project Director.
In reducing the PSC staff, he fired respondent, along with two
other employees, and retained another male, Walz, as the only
professional employee in the division. It is undisputed that
respondent had maintained her application for the position of
Project Director and had requested to remain with TDCA. Respondent
soon was rehired by TDCA and assigned to another division of the
agency. She received the exact salary paid to the Project Director
at PSC, and the subsequent promotions she has received have kept
her salary and responsibility commensurate with what she would have
received had she been appointed Project Director.

															Respondent filed this suit in the United States District Court
for the Western District of Texas. She alleged that the failure to
promote and the subsequent decision to terminate her had been
predicated on gender discrimination in violation of Title VII.
After a bench trial, the District Court held that neither decision
was based on gender discrimination. The court relied on the
testimony of Fuller that the employment decisions necessitated by
the commands of the Department of Labor were based on consultation
among trusted advisers and a nondiscriminatory evaluation of the
relative qualifications of the individuals involved. He testified
that the three individuals terminated did not work well together,
and that TDCA thought that eliminating this problem would improve
PSC's efficiency. The court accepted this explanation as rational
and, in effect, found no evidence that the decisions not to promote
and to terminate respondent were prompted by gender
discrimination.

															The Court of Appeals for the Fifth Circuit reversed in part. 608
F.2d 563 (1979). The court held that the District Court's "implicit
evidentiary finding" that the male hired as Project Director was
better qualified for that position than respondent was not clearly
erroneous. Accordingly, the court affirmed the District Court's
finding that respondent was not discriminated against when she was
not promoted. The Page 450 U. S. 252 Court of Appeals, however, reversed the District Court's finding
that Fuller's testimony sufficiently had rebutted respondent's prima facie case of gender discrimination in the decision
to terminate her employment at PSC. The court reaffirmed its
previously announced views that the defendant in a Title VII case
bears the burden of proving by a preponderance of the evidence the
existence of legitimate nondiscriminatory reasons for the
employment action, and that the defendant also must prove by
objective evidence that those hired or promoted were better
qualified than the plaintiff. The court found that Fuller's
testimony did not carry either of these evidentiary burdens. It,
therefore, reversed the judgment of the District Court and remanded
the case for computation of backpay. [ Footnote 3 ] Because the decision of the Court of Appeals
as to the burden of proof borne by the defendant conflicts with
interpretations of our precedents adopted by other Courts of
Appeals, [ Footnote 4 ] we
granted certiorari. 447 U.S. 920 (1980). We now vacate the Fifth
Circuit's decision and remand for application of the correct
standard. II In McDonnell Douglas Corp. v. Green, 411 U.
S. 792 (1973), we set forth the basic allocation of
burdens and order of presentation of proof in a Title VII case
alleging discriminatory treatment. [ Footnote 5 ] First, the plaintiff has the burden of proving
by Page 450 U. S. 253 the preponderance of the evidence a prima facie case of
discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant "to
articulate some legitimate, nondiscriminatory reason for the
employee's rejection." Id. at 411 U. S. 802 .
Third, should the defendant carry this burden, the plaintiff must
then have an opportunity to prove by a preponderance of the
evidence that the legitimate reasons offered by the defendant were
not its true reasons, but were a pretext for discrimination. Id. at 411 U. S.
804 .

															The nature of the burden that shifts to the defendant should be
understood in light of the plaintiff's ultimate and intermediate
burdens. The ultimate burden of persuading the trier of fact that
the defendant intentionally discriminated against the plaintiff
remains at all times with the plaintiff. See Board of Trustees
of Keene State College v. Sweeney, 439 U. S.
24 , 439 U. S. 25 , n.
2 (1978); id. at 439 U. S. 29 (STEVENS, J., dissenting). See generally 9 J. Wigmore,
Evidence § 2489 (3d ed.1940) (the burden of persuasion "never
shifts"). The McDonnell Douglas division of intermediate
evidentiary burdens serves to bring the litigants and the court
expeditiously and fairly to this ultimate question.

															The burden of establishing a prima facie case of
disparate treatment is not onerous. The plaintiff must prove by a
preponderance of the evidence that she applied for an available
position for which she was qualified, but was rejected under
circumstances which give rise to an inference of unlawful
discrimination. [ Footnote 6 ]
The prima facie case serves an important Page 450 U. S. 254 function in the litigation: it eliminates the most common
nondiscriminatory reasons for the plaintiff's rejection. See
Teamsters v. United States, 431 U. S. 324 , 431 U. S. 358 ,
and n. 44 (1977). As the Court explained in Furnco Construction
Corp. v. Waters, 438 U. S. 567 , 438 U. S. 577 (1978), the prima facie case

															"raises an inference of discrimination only because we presume
these acts, if otherwise unexplained, are more likely than not
based on the consideration of impermissible factors."

															Establishment of the prima facie case in effect creates
a presumption that the employer unlawfully discriminated against
the employee. If the trier of fact believes the plaintiff's
evidence, and if the employer is silent in the face of the
presumption, the court must enter judgment for the plaintiff
because no issue of fact remains in the case. [ Footnote 7 ]

															The burden that shifts to the defendant, therefore, is to rebut
the presumption of discrimination by producing evidence that the
plaintiff was rejected, or someone else was preferred, for a
legitimate, nondiscriminatory reason. The defendant need not
persuade the court that it was actually motivated by the proffered
reasons. See Sweeney, supra at 439 U. S. 25 . It
is sufficient if the defendant's evidence raises a genuine issue of
fact as to whether it discriminated against the plaintiff.
[ Footnote 8 ] Page 450 U. S. 255 To accomplish this, the defendant must clearly set forth,
through the introduction of admissible evidence, the reasons for
the plaintiff's rejection. [ Footnote 9 ] The explanation provided must be legally
sufficient to justify a judgment for the defendant. If the
defendant carries this burden of production, the presumption raised
by the prima facie case is rebutted, [ Footnote 10 ] and the factual inquiry proceeds to
a new level of specificity. Placing this burden of production on
the defendant thus serves simultaneously to meet the plaintiff's prima facie case by presenting a legitimate reason for the
action and to frame the factual issue with sufficient clarity so
that the Page 450 U. S. 256 plaintiff will have a full and fair opportunity to demonstrate
pretext. The sufficiency of the defendant's evidence should be
evaluated by the extent to which it fulfills these functions.

															The plaintiff retains the burden of persuasion. She now must
have the opportunity to demonstrate that the proffered reason was
not the true reason for the employment decision. This burden now
merges with the ultimate burden of persuading the court that she
has been the victim of intentional discrimination. She may succeed
in this either directly by persuading the court that a
discriminatory reason more likely motivated the employer or
indirectly by showing that the employer's proffered explanation is
unworthy of credence. See McDonnell Douglas, 411 U.S. at 411 U. S.
804 -805. III In reversing the Judgment of the District Court that the
discharge of respondent from PSC was unrelated to her sex, the
Court of Appeals adhered to two rules it had developed to elaborate
the defendant's burden of proof. First, the defendant must prove by
a preponderance of the evidence that legitimate, nondiscriminatory
reasons for the discharge existed. 608 F.2d at 567. See Turner
v. Texas Instruments, Inc., 555 F.2d 1251, 1255 (CA5 1977).
Second, to satisfy this burden, the defendant "must prove that
those he hired . . . were somehow better qualified than
was plaintiff; in other words, comparative evidence is needed." 608
F.2d at 567 (emphasis in original). See East v. Romine,
Inc., 518 F.2d 332, 339-340 (CA5 1975). A The Court of Appeals has misconstrued the nature of the burden
that McDonnell Douglas and its progeny place on the
defendant. See 450 U. S. supra. We stated in Sweeney that "the employer's
burden is satisfied if he simply explains what he has done' or
`produc[es] evidence of legitimate nondiscriminatory reasons.'" 439
U.S. at 439 U. S. 25 , n.
2, quoting id. at 439 U. S. 28 , 439 U. S. 29 (STEVENS, J., dissenting). It is plain that the Court Page 450 U. S. 257 of Appeals required much more: it placed on the defendant the
burden of persuading the court that it had convincing, objective
reasons for preferring the chosen applicant above the plaintiff.
[ Footnote 11 ]

															The Court of Appeals distinguished Sweeney on the
ground that the case held only that the defendant did not have the
burden of proving the absence of discriminatory intent. But this
distinction slights the rationale of Sweeney and of our
other cases. We have stated consistently that the employee's prima facie case of discrimination will he rebutted if the
employer articulates lawful reasons for the action; that is, to
satisfy this intermediate burden, the employer need only produce
admissible evidence which would allow the trier of fact rationally
to conclude that the employment decision had not been motivated by
discriminatory animus. The Court of Appeals would require the
defendant to introduce evidence which, in the absence of any
evidence of pretext, would persuade the trier of fact that the
employment action was lawful. This exceeds what properly can be
demanded to satisfy a burden of production.

															The court placed the burden of persuasion on the defendant
apparently because it feared that,

															"[i]f an employer need Page 450 U. S. 258 only articulate -- not prove -- a legitimate,
nondiscriminatory reason for his action, he may compose fictitious,
but legitimate, reasons for his actions." Turner v. Texas Instruments, Inc., supra at 1255
(emphasis in original). We do not believe, however, that limiting
the defendant's evidentiary obligation to a burden of production
will unduly hinder the plaintiff. First, as noted above, the
defendant's explanation of its legitimate reasons must be clear and
reasonably specific. Supra at 450 U. S. 255 . See Loeb v. Textron, Inc., 600 F.2d 1003, 1011-1012, n. 5
(CA1 1979). This obligation arises both from the necessity of
rebutting the inference of discrimination arising from the prima facie case and from the requirement that the
plaintiff be afforded "a full and fair opportunity" to demonstrate
pretext. Second, although the defendant does not bear a formal
burden of persuasion, the defendant nevertheless retains an
incentive to persuade the trier of fact that the employment
decision was lawful. Thus, the defendant normally will attempt to
prove the factual basis for its explanation. Third, the liberal
discovery rules applicable to any civil suit in federal court are
supplemented in a Title VII suit by the plaintiff's access to the
Equal Employment Opportunity Commission's investigatory files
concerning her complaint. See EEOC v. Associated Dry Goods
Corp., 449 U. S. 590 (1981). Given these factors, we are unpersuaded that the plaintiff
will find it particularly difficult to prove that a proffered
explanation lacking a factual basis is a pretext. We remain
confident that the McDonnell Douglas framework permits the
plaintiff meriting relief to demonstrate intentional
discrimination. B The Court of Appeals also erred in requiring the defendant to
prove by objective evidence that the person hired or promoted was
more qualified than the plaintiff. McDonnell Douglas teaches that it is the plaintiff's task to demonstrate that
similarly situated employees were not treated equally. 411 U.S. at 411 U. S. 804 .
The Court of Appeals' rule would require Page 450 U. S. 259 the employer to show that the plaintiff's objective
qualifications were inferior to those of the person selected. If it
cannot, a court would, in effect, conclude that it has
discriminated.

															The court's procedural rule harbors a substantive error. Title
VII prohibits all discrimination in employment based upon race,
sex, and national origin.

															"The broad, overriding interest, shared by employer, employee,
and consumer, is efficient and trustworthy workmanship assured
through fair and . . . neutral employment and personnel
decisions." McDonnell Douglas, supra at 411 U. S. 801 .
Title VII, however, does not demand that an employer give
preferential treatment to minorities or women. 42 U.S.C. §
2000e-2(j). See Steelworkers v. Weber, 443 U.
S. 193 , 443 U. S.
205 -206 (1979). The statute was not intended to
"diminish traditional management prerogatives." Id. at 443 U. S. 207 .
It does not require the employer to restructure his employment
practices to maximize the number of minorities and women hired. Furnco Construction Corp. v. Waters, 438 U.
S. 567 , 438 U. S.
577 -578 (1978).

															The views of the Court of Appeals can be read, we think, as
requiring the employer to hire the minority or female applicant
whenever that person's objective qualifications were equal to those
of a white male applicant. But Title VII does not obligate an
employer to accord this preference. Rather, the employer has
discretion to choose among equally qualified candidates, provided
the decision is not based upon unlawful criteria. The fact that a
court may think that the employer misjudged the qualifications of
the applicants does not, in itself, expose him to Title VII
liability, although this may be probative of whether the employer's
reasons are pretexts for discrimination. Loeb v. Textron, Inc.,
supra at 1012, n. 6; see Lieberman v. Gant, 630 F.2d
60, 65 (CA2 1980). IV In summary, the Court of Appeals erred by requiring the
defendant to prove by a preponderance of the evidence the Page 450 U. S. 260 existence of nondiscriminatory reasons for terminating the
respondent, and that the person retained in her stead had superior
objective qualifications for the position. [ Footnote 12 ] When the plaintiff has proved a prima facie case of discrimination, the defendant bears
only the burden of explaining clearly the nondiscriminatory reasons
for its actions. The judgment of the Court of Appeals is vacated,
and the case is remanded for further proceedings consistent with
this opinion. It is so ordered. [ Footnote 1 ]

															Among the problems identified were overstaffing, lack of fiscal
control, poor bookkeeping, lack of communication among PSC staff,
and the lack of a full-time Project Director. Letter of March 20,
1973, from Charles Johnson to B.R. Fuller, reprinted in App.
38-40.

															[ Footnote 2 ] See id. at 39.

															[ Footnote 3 ]

															The Court of Appeals also vacated the District Court's judgment
that petitioner did not violate Title VII's equal pay provision, 42
U.S.C. § 2000e-2(h), but that decision is not challenged here.

															[ Footnote 4 ] See, e.g., Lieberman v. Gant, 630 F.2d 60 (CA2 1980), Jackson v. U.S. Steel Corp., 624 F.2d 436 (CA3 1980); Ambush v. Montgomery County Government, 22 FEP Cases 1101
(CA4 1980); Loeb v. Textron, Inc., 600 F.2d 1003 (CA1
1979). But see Vaughn v. Westinghouse Elec. Corp., 620
F.2d 655 (CA8 1980), cert. pending, No. 80-276.

															[ Footnote 5 ]

															We have recognized that the factual issues, and therefore the
character of the evidence presented, differ when the plaintiff
claims that a facially neutral employment policy has a
discriminatory impact on protected classes. See McDonnell
Douglas, 411 U.S. at 411 U. S. 802 ,
n. 14; Teamsters v. United States, 431 U.
S. 324 , 431 U. S.
335 -336, and n. 15 (1977).

															[ Footnote 6 ]

															In McDonnell Douglas, supra, we described an
appropriate model for a prima facie case of racial
discrimination. The plaintiff must show:

															"(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."

															411 U.S. at 411 U. S. 802 .
We added, however, that this standard is not inflexible, as

															"[t]he facts necessarily will vary in Title VII cases, and the
specification above of the prima facie proof required from
respondent is not necessarily applicable in every respect in
differing factual situations." Id. at 411 U. S. 802 ,
n. 13.

															In the instant case, it is not seriously contested that
respondent has proved a prima facie case. She showed that
she was a qualified woman who sought an available position, but the
position was left open for several months before she finally was
rejected in favor of a male, Walz, who had been under her
supervision.

															[ Footnote 7 ]

															The phrase " prima facie case" not only may denote the
establishment of a legally mandatory, rebuttable presumption, but
also may be used by courts to describe the plaintiff's burden of
producing enough evidence to permit the trier of fact to infer the
fact at issue. 9 J. Wigmore, Evidence § 2494 (3d ed.1940). McDonnell Douglas should have made it apparent that, in
the Title VII context, we use " prima facie case" in the
former sense.

															[ Footnote 8 ]

															This evidentiary relationship between the presumption created by
a prima facie case and the consequential burden of
production placed on the defendant is a traditional feature of the
common law. "The word presumption,' properly used, refers only
to a device for allocating the production burden." F. James &
G. Hazard, Civil Procedure § 7.9, p. 255 (2d ed.1977) (footnote
omitted). See Fed.Rule Evid. 301. See generally 9
J. Wigmore, Evidence § 2491 (3d ed.1940). Cf. J. Maguire,
Evidence, Common Sense and Common Law 185-186 (1947). Usually,
assessing the burden of production helps the judge determine
whether the litigants have created an issue of fact to be decided
by the jury. In a Title VII case, the allocation of burdens and the
creation of a presumption by the establishment of a prima
facie case is intended progressively to sharpen the inquiry
into the elusive factual question of intentional
discrimination. [ Footnote 9 ]

															An articulation not admitted into evidence will not suffice.
Thus, the defendant cannot meet its burden merely through an answer
to the complaint or by argument of counsel.

															[ Footnote 10 ] See generally J. Thayer, Preliminary Treatise on
Evidence 346 (1898). In saying that the presumption drops from the
case, we do not imply that the trier of fact no longer may consider
evidence previously introduced by the plaintiff to establish a prima facie case. A satisfactory explanation by the
defendant destroys the legally mandatory inference of
discrimination arising from the plaintiff's initial evidence.
Nonetheless, this evidence and inferences properly drawn therefrom
may be considered by the trier of fact on the issue of whether the
defendant's explanation is pretextual. Indeed, there may be some
cases where the plaintiff's initial evidence, combined with
effective cross-examination of the defendant, will suffice to
discredit the defendant's explanation.

															[ Footnote 11 ]

															The court reviewed the defendant's evidence and explained its
deficiency:

															"Defendant failed to introduce comparative factual data
concerning Burdine and Walz. Fuller merely testified that he
discharged and retained personnel in the spring shakeup at TDCA
primarily on the recommendations of subordinates, and that he
considered Walz qualified for the position he was retained to do.
Fuller failed to specify any objective criteria on which he based
the decision to discharge Burdine and retain Walz. He stated only
that the action was in the best interest of the program, and that
there had been some friction within the department that might be
alleviated by Burdine's discharge. Nothing in the record indicates
whether he examined Walz' ability to work well with others. This
court, in East, found such unsubstantiated assertions of
'qualification' and 'prior work record' insufficient absent data
that will allow a true comparison of the individuals hired and
rejected."

															608 F.2d at 568.

															[ Footnote 12 ]

															Because the Court of Appeals applied the wrong legal standard to
the evidence, we have no occasion to decide whether it erred in not
reviewing the District Court's finding of no intentional
discrimination under the "clearly erroneous" standard of Federal
Rule of Civil Procedure 52(a). Addressing this issue in this case
would be inappropriate, because the District Court made no findings
on the intermediate questions posed by McDonnell
Douglas.


U.S. Supreme Court Givhan v. Western Line Cons. Sch.
Dist., 439
U.S. 410 (1979) Givhan v. Western Line Consolidated
School District No. 77-1051 Argued November 7,
1978 Decided January 9,
1979 439
U.S. 410 CERTIORARI TO THE UNITED STATES
COURT OF APPEAL FOR THE FIFTH
CIRCUIT Syllabus After petitioner was dismissed from her employment as a teacher,
she intervened in a desegregation action against respondent School
District, seeking reinstatement on the ground, inter alia, that her dismissal infringed her right of free speech under the
First and Fourteenth Amendments. In an effort to justify the
dismissal, the School District introduced evidence of, inter
alia, a series of private encounters between petitioner and
the school principal in which petitioner allegedly made "petty and
unreasonable demands" in a manner variously described by the
principal as "insulting," "hostile," "loud," and "arrogant."
Concluding that the primary reason for the dismissal was
petitioner's criticism of the School District's practices and
policies, which she conceived to be racially discriminatory, the
District Court held that the dismissal violated petitioner's First
Amendment rights and ordered her reinstatement. The Court of
Appeals reversed, holding that, under Pickering v. Board of
Education, 391 U. S. 563 ; Perry v. Sindermann, 408 U. S. 593 ; and Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.
S. 274 , petitioner's complaints and opinions were not
protected by the First Amendment because they were expressed
privately to the principal, and because there is no constitutional
right to "press even good' ideas on an unwilling
recipient." Held: A public employee does not forfeit his First
Amendment protection against governmental abridgment of freedom of
speech when he arranges to communicate privately with his employer,
rather than to express his views publicly. Pp. 439 U. S.
413 -417.

															(a) Pickering, Perry, and Mt. Healthy do not
support the Court of Appeals' conclusion that private expression is
unprotected by the First Amendment. The fact that each of those
cases involved public expression by the employee was not critical
to the decision. Pp. 439 U. S.
414 -415.

															(b) Nor is the Court of Appeals' view supported by the "captive
audience" rationale, since the principal, having opened his office
door to petitioner, was hardly in a position to argue that he was
the " unwilling recipient" of her views. P. 439 U. S.
415 .

															(c) Respondents' Mt. Healthy claim, rejected by the
Court of Appeals, that the decision to terminate petitioner would
have been made Page 439 U. S. 411 even if her encounters with the principal had never occurred
called for a factual determination that could not, on the record,
be resolved by that court, since it was not presented to the
District Court, Mt. Healthy having been decided after the
trial in this case. Pp. 439 U. S.
416 -417.

															555 F.2d 1309, vacated in part and remanded.

															REHNQUIST, J., delivered the opinion for a unanimous Court.
STEVENS, J., filed a concurring opinion, post, p. 439 U. S.
417 .

															MR. JUSTICE REHNQUIST delivered the opinion of the Court.

															Petitioner Bessie Givhan was dismissed from her employment as a
Junior high English teacher at the end of the 1970-1971 school
year. [ Footnote 1 ] At the time
of petitioner's termination, respondent Western Line Consolidated
School District was the subject of a desegregation order entered by
the United States District Court for the Northern District of
Mississippi. Petitioner filed a complaint in intervention in the
desegregation action, seeking reinstatement on the dual grounds
that Page 439 U. S. 412 nonrenewal of her contract violated the rule laid down by the
Court of Appeals for the Fifth Circuit in Singleton v. Jackson
Municipal Separate School District, 419 F.2d 1211 (1969), rev'd and remanded sub nom. Carter v. West Felician Parish
School Board, 396 U. S. 290 (1970), on remand, 425 F.2d 1211 (1970), and infringed her
right of free speech secured by the First and Fourteenth Amendments
of the United States Constitution. In an effort to show that its
decision was justified, respondent School District introduced
evidence of, among other things, [ Footnote 2 ] a series of private encounters between
petitioner and the school principal in which petitioner allegedly
made "petty and unreasonable demands" in a manner variously
described by the principal as "insulting," "hostile," "loud," and
"arrogant." After a two-day bench trial, the District Court held
that petitioner's termination had violated the First Amendment.
Finding that petitioner had made "demands" on but two occasions,
and that those demands Page 439 U. S. 413 "were neither 'petty' nor 'unreasonable,' insomuch as all the
complaints in question involved employment policies and practices
at [the] school which [petitioner] conceived to be racially
discriminatory in purpose or effect,"

															the District Court concluded that

															"the primary reason for the school district's failure to renew
[petitioner's] contract was her criticism of the policies and
practices of the school district, especially the school to which
she was assigned to teach."

															App. to Pet. for Cert. 35a. Accordingly, the District Court held
that the dismissal violated petitioner's First Amendment rights, as
enunciated in Perry v. Sindermann, 408 U.
S. 593 (1972), and Pickering v. Board of
Education, 391 U. S. 563 (1968), and ordered her reinstatement.

															The Court of Appeals for the Fifth Circuit reversed. Ayers
v. Western Line Consol. School Dist., 555 F.2d 1309 (1977).
Although it found the District Court's findings not clearly
erroneous, the Court of Appeals concluded that, because petitioner
had privately expressed her complaints and opinions to the
principal, her expression was not protected under the First
Amendment. Support for this proposition was thought to be derived
from Pickering, supra, Perry, supra, and Mt. Healthy
City Bd. of Ed. v. Doyle, 429 U. S. 274 (1977), which were found to contain "[t]he strong implication . . .
that private expression by a public employee is not
constitutionally protected." 555 F.2d at 1318. The Court of Appeals
also concluded that there is no constitutional right to "press even good' ideas on an unwilling recipient," saying that to afford
public employees the right to such private expression "would, in
effect, force school principals to be ombudsmen, for damnable, as
well as laudable, expressions." Id. at 1319. We are unable
to agree that private expression of one's views is beyond
constitutional protection, and therefore reverse the Court of
Appeals' judgment and remand the case so that it may consider the
contentions of the parties freed from this erroneous view of the
First Amendment. Page 439 U. S. 414 This Court's decisions in Pickering, Perry, and Mt.
Healthy do not support the conclusion that a public employee
forfeits his protection against governmental abridgment of freedom
of speech if he decides to express his views privately, rather than
publicly. While those cases each arose in the context of a public
employee's public expression, the rule to be derived from them is
not dependent on that largely coincidental fact. In Pickering, a teacher was discharged for publicly
criticizing, in a letter published in a local newspaper, the school
board's handling of prior bond issue proposals and its subsequent
allocation of financial resource between the schools' educational
and athletic programs. Noting that the free speech rights of public
employees are not absolute, the Court held that, in determining
whether a government employee's speech is constitutionally
protected, "the interests of the [employee], as a citizen, in
commenting upon matters of public concern" must be balanced against
"the interest of the State, as an employer, in promoting the
efficiency of the public services it performs through its
employees." 391 U.S. at 391 U. S. 568 .
The Court concluded that, under the circumstances of that case,

															"the interest of the school administration in limiting teachers'
opportunities to contribute to public debate [was] not
significantly greater than its interest in limiting a similar
contribution by any member of the general public." Id. at 391 U. S. 573 .
Here, the opinion of the Court of Appeals may be read to turn, in
part, on its view that the working relationship between principal
and teacher is significantly different from the relationship
between the parties in Pickering, [ Footnote 3 ] as is evidenced by Page 439 U. S. 415 its reference to its own opinion in Abbott v. Thetford, 534 F.2d 1101 (1976) (en banc), cert. denied, 430 U.
S. 54 (177). But we do not feel confident that the Court
of Appeals' decision would have been placed on that ground
notwithstanding its view that the First Amendment does not require
the same sort of Pickering balancing for the private
expression of a public employee as it does for public expression.
[ Footnote 4 ] Perry and Mt. Healthy arose out of similar
disputes between teachers and their public employers. As we have
noted, however, the fact that each of these cases involved public
expression by the employee was not critical to the decision. Nor is
the Court of Appeals' view supported by the "captive audience"
rationale. Having opened his office door to petitioner, the
principal was hardly in a position to argue that he was the
" unwilling recipient" of her views.

															The First Amendment forbids abridgment of the "freedom of
speech." Neither the Amendment itself nor our decisions indicate
that this freedom is lost to the public employee who arranges to
communicate privately with his employer, rather Page 439 U. S. 416 than to spread his views before the public. We decline to adopt
such a view of the First Amendment.

															While this case was pending on appeal to the Court of Appeals, Mt. Healthy City Bd. of Ed. v. Doyle, supra, was decided.
In that case, this Court rejected the view that a public employee
must be reinstated whenever constitutionally protected conduct
plays a "substantial" part in the employer's decision to terminate.
Such a rule would require reinstatement of employees that the
public employer would have dismissed even if the constitutionally
protected conduct had not occurred and, consequently,

															"could place an employee in a better position as a result of the
exercise of constitutionally protected conduct than he would have
occupied had he done nothing."

															429 U.S. at 429 U. S. 285 .
Thus, the Court held that, once the employee has shown that his
constitutionally protected conduct played a "substantial" role in
the employer's decision not to rehire him, the employer is entitled
to show

															"by a preponderance of the evidence that it would have reached
the same decision as to [the employee's] reemployment even in the
absence of the protected conduct." Id. at 429 U. S.
287 .

															The Court of Appeals in the instant case rejected respondents' Mt. Healthy claim that the decision to terminate
petitioner would have been made even if her encounters with the
principal had never occurred:

															"The [trial] court did not make an express finding as to whether
the same decision would have been made, but, on this record, the
[respondent] do not, and seriously cannot, argue that the same
decision would have been made without regard to the 'demands.'
Appellants seem to argue that the preponderance of the evidence
shows that the same decision would have been justified, but that is
not the same as proving that the same decision would have been
made. . . . Therefore, [respondents] failed to make a successful
'same decision anyway' defense."

															555 F.2d at 1315. Page 439 U. S. 417 Since this case was tried before Mt. Healthy was
decided, it is not surprising that respondents did not attempt to
prove in the District Court that t.he decision not to rehire
petitioner would have been made even absent consideration of her
"demands." Thus, the case came to the Court of Appeals in very much
the same posture as Mt. Healthy was presented to this
Court. And while the District Court found that petitioner's
"criticism" was the "primary" reason for the School District's
failure to rehire her, it did not find that she would have been
rehired but for her criticism. Respondents' Mt. Healthy claim called for a factual determination which could not, on this
record, be resolved by the Court of Appeals. [ Footnote 5 ]

															Accordingly, the judgment of the Court of Appeals is vacated
insofar as it relates to petitioner, and the case is remanded for
further proceedings consistent with this opinion. So ordered. [ Footnote 1 ]

															In a letter to petitioner, dated July 28, 1971, District
Superintendent C. L. Morris gave the following reasons for the
decision not to renew her contract:

															"(1) [A] flat refusal to administer standardized national tests
to the pupils in your charge; (2) an announced intention not to
cooperate with the administration of the Glen Allan Attendance
Center; (3) and an antagonistic and hostile attitude to the
administration of the Glen Allan Attendance Center demonstrated
throughout the school year."

															[ Footnote 2 ]

															In addition to the reasons set out in the District
Superintendent's termination letter to petitioner, n 1, supra, the School District
advanced several other justifications for its decision not to
rehire petitioner. The Court of Appeals dealt with these
allegations in a footnote:

															"Appellants also sought to establish these other bases for the
decision not to rehire: (1) that Givhan 'downgraded' the papers of
white students; (2) that she was one of a number of teachers who
walked out of a meeting about desegregation in the fall of 1969 and
attempted to disrupt it by blowing automobile horns outside the
gymnasium; (3) that the school district had received a threat by
Givhan and other teachers not to return to work when schools
reopened on a unitary basis in February, 1970; and (4) that Givhan
had protected a student during a weapons shakedown at Riverside in
March, 1970, by concealing a student's knife until completion of a
search. The evidence on the first three of these points was
inconclusive, and the district judge did not clearly err in
rejecting or ignoring it. Givhan admitted the fourth incident, but
the district judge properly rejected that as a justification for
her not being rehired, as there was no evidence that [the
principal] relied on it in making his recommendation." Ayers v. Western Line Consol. School Dist., 555 F.2d
1309, 1313 n. 7 (CA5 1977).

															[ Footnote 3 ]

															The Pickering Court's decision upholding a teacher's
First Amendment claim was influenced by the fact that the teacher's
public statements had not adversely affected his working
relationship with the objects of his criticism:

															"The statements [were] in no way directed towards any person
with whom appellant would normally be in contact in the course of
his daily work as a teacher. Thus, no question of maintaining
either discipline by immediate superiors or harmony among coworkers
is presented here. Appellant's employment relationship with the
Board and, to a somewhat lesser extent, with the superintendent,
are not the kind of a close working relationships for which it can
persuasively be claimed that personal loyalty and confidence are
necessary to their proper functioning."

															391 U.S. at 391 U. S.
569 -570.

															[ Footnote 4 ]

															Although the First Amendment's protection of government
employees extends to private, as well as public, expression,
striking the Pickering balance in each context may involve
different considerations. When a teacher speaks publicly, it is
generally the content of his statements that must be
assessed to determine whether they

															"in any way either impeded the teacher's proper performance of
his daily duties in the classroom or . . . interfered with the
regular operation of the schools generally." Id. at 391 U. S.
572 -573. Private expression, however, may, in some
situations, bring additional factors to the Pickering calculus. When a government employee personally confronts his
immediate superior, the employing agency's institutional efficiency
may be threatened not only by the content of the employee's
message, but also by the manner, time, and place in which it is
delivered.

															[ Footnote 5 ]

															We cannot agree with the Court of Appeals that the record in
this case does not admit of the argument that petitioner would have
been terminated regardless of her "demands." Even absent
consideration of petitioner's private encounters with the
principal, a decision to terminate based on the reasons detailed at
nn. 1 and | 1 and S. 410fn2|>2, supra, would
hardly strike us as surprising. Additionally, in his letter to
petitioner setting forth the reasons for her termination, District
Superintendent Morris makes no mention of petitioner's "demands"
and "criticism." See 1
and S. 410fn1|>n. 1, supra. MR. JUSTICE STEVENS, concurring.

															Because this Court's opinion in Mt. Healthy Cty Bd. of Ed.
v. Doyle, 429 U. S. 274 , had
not been announced when the District Court decided this case, it
did not expressly find that respondents would have rehired
petitioner if she had not engaged in constitutionally protected
conduct. The District Court did find, however, that petitioner's
protected conduct was the "primary" reason for respondents'
decision. * The Page 439 U. S. 418 Court of Appeals regarded that finding as foreclosing
respondents' Mt. Healthy claim. In essence, the Court of
Appeals concluded that the District Court would have made an
appropriate finding on the issue if it had had access to our Mt. Healthy opinion.

															My understanding of the District Court's finding is the same as
the Court of Appeals'. Nevertheless, I agree that the District
Court should have the opportunity to decide whether there is any
need for further proceedings on the issue. If that court regards
the present record as adequate to enable it to supplement its
original findings without taking additional evidence, it is free to
do so. On that understanding, I join the Court's opinion.

															* App. to Pet. for Cert. 35a. See also id. at 36a,
where the District Court stated that petitioner's protected
activity was "almost entirely" responsible for her termination.