Ida Mary Lewis v. University of Pittsburgh and University of Pittsburgh Book Center

ADAMS, Circuit Judge,

dissenting.

This appeal starkly demonstrates the need to reaffirm the fundamental policy behind statutory protections against employment discrimination.

In the case before us, the trial court misconceived the substantive rights protected by the antidiscrimination statutes, as well as the evidentiary burden — both intermediate and ultimate — allocated to a plaintiff by McDonnell Douglas Corp. v. Green, 411 U.S. 792 , 93 S.Ct. 1817 , 36 L.Ed.2d 668 (1973). Thus while I agree with the majority that all three statutory claims in this proceeding are governed by the same legal standards, and while I also agree that Ida Mary Lewis had the ultimate burden under all three claims of proving that she was denied a promotion because of her race, I cannot join the majority’s conclusion that the district court charged the jury with, and itself applied, the proper legal standard by which to determine whether race was the grounds for the University’s decision not to promote Ms. Lewis. Nor do I agree with the exclusion of testimony regarding possible nepotism in the promotion decision. Accordingly, I respectfully dissent.

I.

Racial discrimination in employment is a serious societal ill for which Congress has prescribed strong statutory remedies:

What is required by Congress [in Title VII] is the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification.

Griggs v. Duke Power Co., 401 U.S. 424, 431 , 91 S.Ct. 849, 853 , 28 L.Ed.2d 158 (1971). The Supreme Court has further noted that

[t]he language of Title VII makes plain the purpose of Congress to assure equality of employment opportunities and to eliminate those discriminatory practices and devices which have fostered racially stratified job environments to the disadvantage of minority citizens.

McDonnell Douglas, supra, 411 U.S. at 800 , 93 S.Ct. at 1823 (1973).

Title VII case law may be divided into two discrete types of claims: 1) those challenging practices that have a disparate impact upon members of a protected class; and 2) those challenging the disparate treatment of individual members of a protected class with regard to hiring, pay, promotions, and the like. In addressing the second type of claim, which is represented by the case at bar, this Court has declared that

[a] plaintiff alleging disparate treatment ... bears the ultimate burden of persuading the jury that his treatment was “caused by purposeful or intentional discrimination.”

Massarsky v. General Motors Corp., 706 F.2d 111, 117 (3d Cir.1983), cert. den., — U.S. —, 104 S.Ct. 348 , 78 L.Ed.2d 314 (1983), quoting Smithers v. Bailar, 629 F.2d 892, 898 (3d Cir.1980).

Employment discrimination claims brought under 42 U.S.C. § 1981 are governed by the same standards as actions brought pursuant to the disparate treatment strand of Title VII. Wilson v. Legal Assistance of North Dakota, 669 F.2d 562, *921 563-64 (8th Cir.1982); Whiting v. Jackson State University, 616 F.2d 116, 121 (5th Cir.1980); Johnson v. Alexander, 572 F.2d 1219 , 1223 (8th Cir.1978), cert. denied, 439 U.S. 986 , 99 S.Ct. 579 , 58 L.Ed.2d 658 . (1978); Patterson v. American Tobacco Comp., 535 F.2d 257 , 270 (4th Cir.), cert. denied, 429 U.S. 920 , 97 S.Ct. 314 , 50 L.Ed.2d 286 (1976); Waters v. Wisconsin Steel Works, 502 F.2d 1309 , 1316 (7th Cir. 1974), cert. denied, 425 U.S. 997 , 96 S.Ct. 2214 , 48 L.Ed.2d 823 (1976). These same criteria apply to claims brought under 42 U.S.C. § 1983 when the § 1983 action provides a parallel remedy for the transgression of rights conferred by Title VII. 1 Whiting, supra at 121 ; Carrion v. Yeshiva University, 535 F.2d 722, 729 (2d Cir.1976).

II.

Considerable confusion surrounds the proper formulation of the ultimate issue in a disparate treatment employment discrimination claim. Although I believe the principal error committed at trial in this case was the preclusion of inferential proof, I also cannot join the majority in holding that the burden upon Ms. Lewis was to show that race was “the but for” reason for the University’s failure to promote her.

The majority relies heavily upon McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273 , 96 S.Ct. 2574 , 49 L.Ed.2d 493 (1976), for the proposition that the Supreme Court has clearly articulated a restrictive “but for” standard. It is noteworthy that the majority points only to one footnote in Santa Fe Trail for this proposition. Id. at 282 n. 10, 96 S.Ct. at 2579 n. 10. The sparse documentation is reflective of the fact that the Supreme Court has yet to address the degree of causation a plaintiff must establish to prevail on a Title VII disparate treatment claim. Indeed, the cited footnote states only that “no more need be shown than that race was a ‘but for’ cause.” Id. The “no more need be shown” phrase indicates that a showing of but for causation would be sufficient; it does not signify that such a showing is necessary to prevail. 2 Moreover, the footnote uses the article “a” rather than “the” to describe how determinative a discriminatory factor must be to satisfy the requirements of “but for.”

The majority cites only two cases to support its interpretation of the Santa Fe Trail footnote. LULAC v. City of Salinas, 654 F.2d 557 (9th Cir.1981); Mack v. Cape Elizabeth School Bd., 553 F.2d 720 (1st Cir. 1977). While the First Circuit, without substantive discussion or any analysis, does require that the discriminatory reasons be shown to be determinative, the Ninth Circuit does not support the majority’s position. Rather, LULAC concerns a defendant’s claim that the district court failed to require a showing that the discriminatory acts alleged “actually caused ... [the] failure to be promoted.” 654 F.2d at 558. Significantly, the Ninth Circuit expressly refused to require such a showing.

Apart from LULAC and Mack , the case law is split between courts holding that “[i]f any element of racial discrimination or retaliation or reprisal played any part in a challenged action, no matter how remote or slight or tangential, the Court would hold that the challenged action was in violation of ... the law . ..,” United States v. Hayes Int’l Corp., 6 FEP Cases (BNA) 1328, 1330 (N.D.Ala.1973) (emphasis added), aff’d 507 F.2d 1279 (5th Cir.1975), see also Bro-din, The Standard of Causation in the Mixed-Motive Title VII Action: A Social *922 Policy Perspective, 82 Col.L.Rev. 292, 308 n. 75 (citing cases for same proposition), and those cases that hold that the prohibited discrimination must be a significant factor. See Whiting, supra; see also Brodin, supra, at 309 n. 78 (citing cases following the Whiting analysis). 3

To require an alleged victim of discrimination to prove that race was “the determinative factor” in the employer’s decision not to hire or promote would severely hamper the ability of victims of discriminatory treatment to vindicate their statutory rights. At bottom, this standard amounts to a “sole basis” test which finds little or no support in the case law or in the legislative history of Title VII. In fact, during the legislative debates on Title VII, Senator McClellan proposed an amendment which would have established the “sole basis” test. In reply, Senator Case argued:

The Senator from Arkansas, as always, seeks to provide the benefit of great clarity and simplicity in his objectives and methods. The difficulty with this amendment is that it would render title VII totally nugatory. If anyone ever had an action that was motivated by a single cause, he is a different kind of animal from any I know of. But beyond that difficulty, this amendment would place upon persons attempting to prove a violation of this section, no matter how clear the violation was, an obstacle so great as to make the title completely worthless. I therefore regret that we are obliged to oppose the amendment, and also to recommend that it be rejected.

110 Cong.Rec. 13,837-38 (1964). Both the proposed McClellan amendment and a similar proposal in the House were defeated prior to ratification of the Civil Rights Act of 1964. To permit by judicial fiat what Congress specifically rejected raises a serious separation of powers question.

An illustration may shed additional light on my concern: two similarly qualified applicants apply for a job; one is white, the other black. After the white applicant is selected, the black applicant sues. The employer testifies that while race was of course a factor, it was not “the” reason for the hiring decision. He goes on to explain that race was one factor leading to the hiring of the white applicant, but not the major one. Under the majority’s analysis the black plaintiff would not prevail. I do not believe that the legislative intent un-dergirding Title VII and the other anti-discrimination statutes may be reconciled with such a result. If these statutes are to have the effect sought by Congress, namely ridding society of discrimination in employment, the introduction of race as any consideration in hiring must not be allowed to withstand judicial scrutiny. It bears emphasis that the leading Supreme Court decision in this area, McDonnell Douglas, requires only that a plaintiff “persuad[e] the court that a discriminatory reason more likely motivated the employer.” 450 U.S. at 256, 101 S.Ct. at 1095 (emphasis added).

Thus I must respectfully dissent from the majority’s unduly restrictive reading of the “but for” factor.

III.

Equally important to the present case are the trial errors not addressed by the majority. In this type of disparate treatment claim, I believe that a “critical issue .. . concerns the order and allocation of proof in a private, non-class action challenging racial discrimination.” McDonnell Douglas, supra, 411 U.S. at 800 , 93 S.Ct. at 1823 . Even if the district court had properly posed the question whether race was a significant factor in the hiring decision or, alternatively, whether race was a “but for” cause of the denial of the promotion to Ms. Lewis, this would not have terminated the *923 judicial inquiry. Of further consequence is the manner in which a plaintiff establishes that race was a significant factor in a refusal to hire or promote.

This Court has taken notice of the fact that “because it often will be difficult for the plaintiff to obtain direct evidence of the employer’s motive, the Supreme Court in McDonnell Douglas ... articulated a set of rules of proof that give the plaintiff the benefit of a presumption operating in his [or her] favor.” Massarsky, supra, 706 F.2d at 117-18 . This “benefit” to the plaintiff is created by an evidentiary shifting of the burden of production to allow a legally cognizable inference of discrimination to be created:

The McDonnell Douglas case involved an individual complainant seeking to prove one instance of unlawful discrimination. An employer’s isolated decision to reject an applicant who belongs to a racial minority does not show that the rejection was racially based. Although the McDonnell Douglas formula does not require direct proof of discrimination, it does demand that the alleged discrimi-natee demonstrate at least that his rejection did not result from the two most common legitimate reasons on which an employer might rely to reject a job applicant: an absolute or relative lack of qualifications or the absence of a vacancy in the job sought. Elimination of these reasons for the refusal to hire is sufficient, absent other explanation, to create an inference that the decision was a discriminatory one.

Int’l Bhd. of Teamsters v. United States, 431 U.S. 324 , 358 n. 44, 97 S.Ct. 1843 , 1866 n. 44, 52 L.Ed.2d 396 (1977).

In Furnco Construction Corp. v. Waters, 438 U.S. 567, 577 , 98 S.Ct. 2943, 2949 , 57 L.Ed.2d 957 (1978), Justice Rehnquist summarized the case law providing for inferential proof of discriminatory intent:

The method suggested in McDonnell Douglas ... is merely a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination. A pri-ma facie case under McDonnell Douglas 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.... And we are willing to presume this largely because we know from our experience that more often than not people do not act in a totally arbitrary manner, without any underlying reasons, especially in a business setting. Thus, when all legitimate reasons for rejecting an applicant have been eliminated as possible reasons for the employer’s actions, it is more likely than not the employer, who we generally assume acts only with some reason, based his decision on an impermissible consideration such as race.

An examination of the mechanics of the McDonnell Douglas standard demonstrates how the use of presumptions is employed to arrive at the ultimate issue in an employment discrimination claim. To create a pri-ma facie case, the plaintiff must establish:

(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.

McDonnell Douglas, supra, 411 U.S. at 802 , 93 S.Ct. at 1824 . Such a prima facie case 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.” Texas Dept, of Community Affairs v. Burdine, 450 U.S. 248, 254 , 101 S.Ct. 1089, 1094 , 67 L.Ed.2d 207 (1981).

Upon the establishment of a prima facie case, the burden of production then shifts to the defendant to rebut the presumption of discriminatory intent by producing evidence that the employee was rejected or someone *924 else advanced for legitímate, nondiscriminatory reasons. Id. This is accomplished by introducing evidence setting forth the reasons for the plaintiff’s rejection.

The Supreme Court has carefully detailed the purpose of the second step of McDonnell Douglas:

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 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.

Burdine, supra, 450 U.S. at 255-56 , 101 S.Ct. at 1094-95 . The plaintiff now has the full burden of establishing that race was a significant factor in the failure to promote. This, however, can be accomplished either inferentially or directly:

[The plaintiff] 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.

Id. at 256 , 101 S.Ct. at 1095 (emphasis added).

At the third step, the immediate burden, that of production or going forward with the evidence, comes together with the ultimate burden of this or any case, that of persuasion or proof. The use of these various terms should not obscure the importance of the McDonnell Douglas test. In order to arrive at the plaintiff’s ultimate burden in employment discrimination claims, the intermediate shifting of subordinate burdens allows for inferential conclusions. Thus, while I do not take issue with the majority’s assertion that the burden of proof rested with the plaintiff, I believe that the district court’s treatment of the intermediate burdens was flawed.

IV.

By requiring the jury to find direct proof of the ultimate issue in Ms. Lewis’ claim, the district court in effect foreclosed the indirect method of proof sanctioned by the McDonnell Douglas test. In particular, the district court’s instruction prevented Ms. Lewis from prevailing by demonstrating that the non-discriminatory reasons proffered by the University were unworthy of belief. Such indirect proof was especially critical to Ms. Lewis’s case since she had succeeded in proving to the jury’s satisfaction that she was “more qualified” than the applicant promoted in her stead. Yet, because of the trial court’s apparent misunderstanding of McDonnell Douglas, the jury was prevented from evaluating the significance of her indirect proof.

Instead of explaining the two types of proof permitted at the third stage of McDonnell Douglas, the trial judge instructed the jury only on what it viewed as the ultimate issue in an employment discrimination case — whether race was' the “but-for” cause of the challenged decision. As the majority has documented, see Maj.Op. at 917-918, the trial judge repeatedly explained the concept of “but-for” causation and emphasized that this “polestar” or basic question was the crucial inquiry in the case. What the judge failed to explain, however, was the fact that the ultimate issue in an employment discrimination claim need not be proven directly, but may also be established inferentially by a showing that the reasons offered by an employer are “unworthy of credence.” Burdine, supra, 450 U.S. at 256 , 101 S.Ct. at 1095 .

The trial judge’s sole discussion of indirect proof in the context of the McDonnell *925 Douglas test 4 effectively transformed the evidentiary steps into a requirement of direct proof of the ultimate issue. He said:

The burden is on the plaintiff to prove by a preponderance of the evidence that the reasons stated by the defendants were just a pretext for a racial [sic] discriminatory reason. If the plaintiff can show the reasons stated by the defendants are a pretext, if she proves they are not the true reasons that the plaintiff was not promoted and that the plaintiff’s race was the determinative factor for the denial of the promotion ... then your verdict must be for the plaintiff.

Tr. at 536-37. Subsequently, the court reiterated this explanation:

In summary, you must find for the plaintiff if you find that the plaintiff has proved by a preponderance of the evidence that, one, she was better qualified for the position of assistant buyer in the trade book department than Miss Aiello, and, two, that the determinative factor of the defendant’s decision to deny Miss Lewis the promotion was her race. In other words, but for the fact that Miss Lewis is black, she would have gotten a promotion. And, three, the reasons advanced by the defendant for denying her the promotion are not true, and, four, the defendant’s reasons are merely a pretext for racially discriminatory reasons.

Tr. at 536-37. Thus the judge repeatedly linked proof of “pretext” with proof that the actual reasons were “racially discriminatory.” In so doing, he mistakenly incorporated a requirement for direct proof into the indirect approach. Ms. Lewis was not permitted to succeed simply by showing that the University’s reasons were unworthy of credence. Rather, the instructions of the court required her to show that the reasons were unworthy of belief because the real reasons were discriminatory.

This collapsing of the indirect and direct branches of proof defeats the purpose of the McDonnell Douglas test. The test’s three-step minuet of shifting burdens of production is, as Justice Rehnquist explained in Furnco Construction, an orderly means of evaluating evidence in light of a presumption that “otherwise unexplained” actions disadvantaging minorities are “more likely than not” the product of “an impermissible consideration such as race.” 438 U.S. at 577 , 98 S.Ct. at 2949 . If at the third step of the McDonnell Douglas test the plaintiff is required to prove directly that discriminatory reasons motivated the employer, then the plaintiff is denied the all-important Furnco presumption of impermissible motive; the McDonnell Douglas test is thereby reduced to an empty ritual. There is no reason for the parties to trudge through the three steps of the test if, at the third step, the plaintiff is forced to prove directly the ultimate issue of the case. 5

*926 V.

While mistaken instructions are ofttimes insignificant and therefore harmless, in the present case it appears very likely that these instructions altered the verdict. In response to special interrogatories, the jury found as follows:

Number one, was the plaintiff, Ida Mary Lewis, qualified in October 1976, for the position of assistant buyer in the trade book department? Answer, yes.

Number two, was the plaintiff, Ida Mary Lewis, more qualified in October 1976, for the position of assistant buyer in the trade book department than Jean Aiello? The answer, yes.

Number three, would the plaintiff Ida Mary Lewis, have been promoted to the position of assistant buyer but for the fact she was black? Answer, no. So say you all.

Tr. 549-50. Despite its finding that Ms. Lewis was “more qualified” than the woman promoted in her place, 6 the jury nonetheless found that race was not the “but for” cause of the University’s decision. Given that the University’s defense turned on its claim that Ms. Lewis performed her job poorly — that is, that she was less “qualified” than the other applicant — the special verdict lends critical significance to the judge’s failure to explain the inferential method of evaluating the evidence. Having found that Ms. Lewis was “more qualified,” a properly charged jury might well have inferred under Furnco and Burdine that Ms. Lewis was a victim of discrimination. But because of the incorrect instructions, Ms. Lewis was denied this opportunity to prevail through the indirect method sanctioned by McDonnell Douglas.

The University seeks to avoid the implications of the special verdict by hypothesizing that the jury believed Ms. Lewis to have superior paper credentials, but inferior job performance. This theory, however, appears to have been foreclosed by the judge’s careful instructions explaining the meaning of “qualifications:”

Education, training and experience are factors to be considered in determining the relative qualifications of the plaintiff and Jean Aiello if they are relevant to the person’s ability to perform the job. Not all education, training or experience is relevant to the ability to perform every job. However, on-the-job performance is always relevant to a person’s ability to perform in a similar or higher job.

Tr. at 534. Thus in answering “yes” to Interrogatory 2, the jury appears to have rejected the legitimate, nondiscriminatory reason advanced by the University. Under these circumstances, the erroneous instruction on inferential proof would normally require the grant of a new trial.

VI.

Although Ms. Lewis’ attorney repeatedly objected to the judge’s instruction on causation, he did not request that the judge explain to the jury the inferential method of proof mandated at the third step of McDonnell Douglas. Instead, he focused on the instruction that race must be “the” determinative factor, rather than “a” significant factor. Tr. at 456, 459, 460. Thus, in order to review the trial court’s explanation of inferential proof — an error independent of the one specifically identified by Ms. Lewis’ counsel — an appellate court must determine that the mistaken instructions constituted “plain error.” Smith v. Coy, 460 F.2d 1226, 1227 (3d Cir.1972).

Our Court, like others, will not find plain error except when the mistake is so funda *927 mental and prejudicial that it results in a miscarriage of justice. Paluch v. Erie Lackawanna RR., 387 F.2d 996, 999-1000 (3d Cir.1968); Ratay v. Lincoln Nat. Life Insur. Co., 378 F.2d 209, 212 (3d Cir.1967). See 9 Wright & Miller, Federal Practice and Procedure § 2558 (1971). We have, however, been willing to review unobjected-to instructions, even in a civil case, if they preclude an accurate understanding of an entire element of a lawsuit. Choy v. Bouc-helle, 436 F.2d 319, 325 (3d Cir.1970) (plain error found because instructions failed to provide guidelines for applying law to facts); Ratay, supra, 378 F.2d at 212 (plain error found because judge incorrectly instructed jury on the burden of proving elements of fraud); Pritchard v. Liggett & Myers, 350 F.2d 479, 484-86 (3d Cir.1965) (plain error found because the judge gave incorrect instruction on assumption of risk). In the present case, the judge’s instructions negated the “suspicion” that Justice Rehnquist referred to in Furnco and the “inference” that Justice Powell referred to in Burdine , thereby foreclosing the inferential path to a demonstration of but-for causation. Given that the whole purpose of McDonnell Douglas rests on the fundamental importance of inferential proof, and given that such proof was particularly critical to Ms. Lewis’ case, I am persuaded that this is one of those unusual situations calling for use of the plain error doctrine in a civil context. On this basis alone, I believe that the plaintiff should be granted a new trial. 7

VII.

The trial court committed a third error that was properly objected to and that would independently require a new trial: the exclusion of evidence showing nepotism. Ms. Lewis sought to introduce evidence indicating that nepotism influenced the decision to promote Jean Aiello in her place. In particular, Ms. Lewis asked to introduce testimony that Ms. Aiello was the niece of Mary Bonasso, operations manager of the bookstore and the second-highest ranking member of management. See Transcript of In-Chambers Conference (Dec. 13, 1982) at 6. Additionally, Ms. Lewis sought to introduce testimony that the two men who were immediately in charge of the promotion decision knew that their supervisor was Ms. Aiello’s aunt. 8 Id. Ms. Lewis argued that this evidence would indicate that the decision was improperly motivated. Id. at 6-7. Over objection, the judge denied the admission of the evidence, reasoning that the evidence would be “confusing, and I do not think it is relevant to why we are here.” Id. at 8.

The evidence of nepotism was clearly relevant to the present case for two distinct reasons. First, under McDonnell Douglas the burden upon Lewis at the third step was to show that the proffered legitimate, non-discriminatory reasons were not worthy of credence. If Lewis could establish that family relations were the controlling consideration in promotions at the bookstore, the University’s defense that the individual chosen for promotion was the most qualified would be undermined. Thus, evidence of nepotism would contribute to the inferential proof of discrimination' at the third step of the inquiry. Under Rule 401 of the Federal Rules of Evidence, such evidence was clearly admissible as having a “tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”

Second, nepotism is by its nature a nonobjective consideration in hiring or promotional decisions that has the effect of locking in the racial and ethnic status quo. If a workforce is racially segregated and hiring *928 is based on kinship to the workforce in place, the pattern of segregation will not be altered. Thus, in ascertaining whether purportedly legitimate reasons were the actual grounds for the employment decision, evidence that the decision-makers sought to advance “one of their own” bears important inferential weight. The evidence that Lewis sought to introduce was therefore fully relevant to the jury’s task of determining under Furnco and Burdine whether she was a victim of discrimination.

VIII.

The incorrect formulation of the ultimate burden of proof to be borne by the plaintiff, combined with presence of the plainly erroneous instructions on inferential proof under McDonnell Douglas and the exclusion of the nepotism evidence, requires that Ms. Lewis be given a new trial.

Beyond the immediate trial errors, however, this case points to the difficulty of protecting the statutory rights of minorities and women not to be subjected to discrimination in the hiring procedures utilized in our society. Necessarily, choices must be made in allocating a limited number of jobs and promotions. Decision-makers must assess abilities, ambitions, and a number of often indeterminate and non-quantifiable factors. Because in our society employment decisions are generally private, the ability of the courts to review these matters for evidence of discrimination is circumscribed. The time when applicants were turned down directly and openly on the basis of race, sex, national origin, and the like is fortunately drawing to a close. This does not mean, however, that there is no longer any discrimination or that the task of the courts in this regard has been simplified. Today we must address the less easily recognizable forms of discrimination that may be present in closed-door decisions to employ or promote individuals. Without sufficient attention to the need to eliminate considerations of race from any role in the hiring process and without sensitivity to inferential proof of discrimination, we would in effect retard the process of eradicating discriminatory practices and the advances that have been made in this area over the last several decades.

Because I do not believe that the majority opinion is sufficiently attuned to the difficulties of proof in this type of discrimination claim, and because of the errors committed at trial, I must respectfully dissent.

. The question whether state action was present here for purposes of § 1983 was not raised in the pleadings, at trial, or in the briefs.

. In the context of an Age Discrimination in Employment Act case, this Court has expressed a strong preference for an “a determinative factor” rather than “the determinative factor” analysis. Smithers, supra, 629 F.2d at 896-97 . Although the Court in Smithers did not reverse the trial court for its inadvertent use of “the,” it clearly implied that absent the curative use of “a determinative factor” as the ultimate legal standard for weighing the employment discrimination claim, the verdict for the defendant could not have withstood scrutiny. We further note that Smithers involved a bench trial where the effects of an incorrect formulation of the ultimate issue are more easily circumscribed and evaluated than in a jury trial.

. The majority’s reading of Whiting is unpersuasive. Acknowledging that the Fifth Circuit supports “a significant factor” test, the majority nevertheless reads this to be equivalent to a but-for test which, in turn, is equivalent to a determinative factor test. I cannot discern how a test premised on the difficulty of identifying the ultimate operative motivation in what is often a complex and involved decision can be reduced to a test requiring a plaintiff to prove that one identifiable factor was determinative.

. The trial judge did mention indirect proof at two other points in the instructions. Tr. at 524-25, 532-33. See full quotations in Maj.Op. at 919-920 n.10. But these general explanations of inference are, of course, not directly relevant to the third step of McDonnell Douglas.

. It bears emphasizing that the precision necessary in jury instructions based on McDonnell Douglas is by no means a “new element,” as the majority has suggested. Maj.Op. at 919-920 n. 10. The majority’s reliance on Devitt & Blackmar, Federal Jury Practice and Instructions § 92.25 (Supp.1982), is simply misplaced. The cited passage of this handbook refers only to the burden on the defendant to rebut a prima facie case in an Age Discrimination in Employment Act case. This section’s treatment of the elements of a bona fide occupational qualification defense does not address the proper instruction to a jury at the third stage of the McDonnell Douglas test when a plaintiff seeks to rebut the proffered non-discriminatory reason on the grounds that it is a pretext.

Only last term, the Supreme Court, per Justice Rehnquist, once again affirmed that a plaintiff alleging discriminatory treatment must be allowed to prove discriminatory intent inferentially and that the failure to allow such proof is reversible error. See U.S. Postal Service Bd. of Governors v. Aikens, — U.S. —, 103 S.Ct. 1478 , 1481 n. 3, 75 L.Ed.2d 403 (1983):

As in any lawsuit, the plaintiff may prove his case by direct or circumstantial evidence. The trier of fact should consider all the evidence, giving it whatever weight and credence it deserves. Thus, we agree with the Court of Appeals that the District Court should not have required Aikens to submit direct evidence of discriminatory intent. See International Brotherhood of Teamsters v. United States, 431 U.S. 324 , 358 n. 44, 97 S.Ct. 1843 , 1866 n. 44, 52 L.Ed.2d 396 (1977) *926 (“[T]he McDonnell Douglas formula does not require direct proof of discrimination”).

. In Special Interrogatory 2, the district court incorrectly charged the jury on the burden of establishing a prima facie case. Ms. Lewis did not have to show that she was “more qualified,” but only that she was “as qualified” as the person eventually hired. See McDonnell Douglas, supra, 411 U.S. at 802 , 93 S.Ct. at 1824 ; see also Note, Relative Qualification and the Prima Facie Case in Title VII Litigation, 82 Col.L.Rev. 553 (1982) (analyzing case law and policy reasons for requiring plaintiff to show only that he/she was qualified at prima facie stage). Because the jury found Ms. Lewis to be “more qualified,” this misstatement constitutes harmless error.

. Although Ms. Lewis did not focus precisely on inferential proof at the third step of the McDonnell Douglas test, in her briefs she made clear her contention that the trial court had erroneously explained the evidentiary burden imposed on a plaintiff in a statutory employment discrimination case. Accordingly, I cannot agree with the majority’s suggestion that it is inappropriate to consider this issue on appeal. See Maj.Op. at 919-920 n. 10.

. Ms. Lewis also intended to show that the University of Pittsburgh Staff Handbook prohibits nepotism.