UNITED STATES POSTAL SERVICE BOARD OF GOVERNORS, PETITIONER V. LOUIS H. AIKENS No. 81-1044 In the Supreme Court of the United States October Term, 1981 On Writ of Certiorari to the United States Court of Appeals for the District of Columbia Circuit Brief for the Petitioner TABLE OF CONTENTS Opinions below Jurisdiction Statute involved Statement Summary of argument Argument: An employer's selection of a qualified white applicant for a position instead of a qualified black applicant does not, without more, establish a prima facie case of employment discrimination A. Such a selection does not raise an inference of racial discrimination B. Requiring more than a showing that a qualified nonminority applicant was chosen over a qualified minority applicant is not unfair to plaintiffs and avoids placing unwarranted burdens on employers 1. A plaintiff has ample alternative means of establishing a prima facie case 2. A defendant should not be required to present a defense in an employment discrimination action unless the plaintiff shows more than the court of appeals required Conclusion OPINIONS BELOW The opinion of the district court (Pet. App. 49a-59a) is not reported. The initial opinion of the court of appeals (Pet. App. 17a-40a) is reported at 642 F.2d 514. The opinion of the court of appeals on petitions for rehearing (Pet. App. 43a-48a) is not reported. The order of this Court vacating the initial judgment of the court of appeals and remanding for reconsideration (Pet. App. 10a-14a) is reported at 453 U.S. 902. The opinion of the court of appeals on remand (Pet. App. 2a-9a) is reported at 665 F.2d 1057. JURISDICTION The judgment of the court of appeals (Pet. App. 1a) was entered on September 8, 1981. The petition for a writ of certiorari was filed on December 4, 1981, and granted on March 22, 1982 (J.A. 12). The jurisdiction of this Court rests on 28 U.S.C. 1254(1). STATUTE INVOLVED Section 717(a) of the Civil Rights Act of 1964, 42 U.S.C. 2000e-16(a), provides in relevant part: All personnel actions affecting employees or applicants for employment * * * in executive agencies * * * , in the United States Postal Service and the Postal Rate Commission, * * * shall be made free from any discrimination based on race, color, religion, sex, or national origin. QUESTION PRESENTED Whether a Postal Service employee who showed only that he was black, that he had applied for a promotion for which he possessed the minimum qualifications, and that the Postal Service selected another, non-minority, applicant, established a prima facie case of employment discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. STATEMENT 1. Respondent, a black man and a retired employee of the United States Postal Service in Washington, D.C., charged that the Postal Service denied him certain promotions and details because of his race, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. He filed an administrative complaint with the Postal Service in 1974. The Postal Service conducted an extensive investigation that included several informal efforts at conciliation and a three-day hearing before a Complaints Examiner (Pet. App. 51a). The Complaints Examiner received evidence from the Postal Service officials who made the decision to deny respondent the four promotions and details at issue, /1/ and he summarized their explanations in his report (The Findings and Recommended Decision in the Discrimination Complaint of: Louis H. Aikens at (Nov. 12, 1975): /2/ The alleged discriminating officials, Messrs, Beall and Rapee, both stated that the reason that complainant was not detailed and/or promoted * * * was that he indicated to each of them at various times that he was only interested in an administrative service position * * * which was continuously occupied, or the Postmaster's position, and that he was not interested in such positions as Director of Finance, Director of Personnel and Tour Superintendent * * * . (A)ccording to Mr. Beall, serving in these positions would have enhanced complainant's career and future recompense because he would have acquired a broader background in postal affairs. * * * A broader background would have stood complainant in good stead, in Mr. Beall's opinion, for selection to other details and/or promotions. The Complaints Examiner recommended a finding that respondent had not been discriminated against; the Postal Service accepted his recommendation. Respondent appealed to the Civil Service Commission, and the Commission's Appeals Review Board affirmed the decision of the Postal Service. Its opinion similarly stated that respondent's refusal to accept certain positions that would have broadened his experience "played a major role in the minds of the selecting officials" (Decision of the United States Civil Service Commission Appeals Review Board at 4 (Jan. 13, 1977). 2. Respondent then sued the Postal Service in the United States District Court for the District of Columbia. See 42 U.S.C. 2000e-16(c); Chandler v. Roudebush, 425 U.S. 840 (1976). He alleged a violation of Section 717(a) of the Civil Rights Act, 42 U.S.C. 2000e-16(a), and sought retroactive promotions, back pay, and other relief (Pet. App. 50a). After a two-day trial at which both sides presented evidence, the district court entered judgment against respondent (Pet. App. 61a). The Postal Service did not deny that respondent, along with several other employees, had the qualifications needed to be eligible for the promotions and details in issue. There was also no dispute that the Postal Service selected white employees for those promotions and details instead of respondent. The district court found, however, that during the period covered by respondent's complaint, "there was a considerable increase in the number of black employees occupying high level positions in the District of Columbia Post Office" (id. at 53a). The court also found that during that period, "other blacks as well as whites were promoted or detailed to positions above" respondent's (ibid.). At the time of the district court's opinion -- February 1979 -- "almost all high level positions (were) held by blacks" (ibid.). The district court also found (Pet. App. 51a-52a) -- and the court of appeals specifically agreed (id. at 18a) -- that from 1952 to 1966 respondent advanced steadily through a succession of supervisory positions in the Post Office. Between 1966 and 1973, respondent was offered, but declined, several promotions and lateral transfers that would have helped him obtain promotions (id. at 52a-53a). Nonetheless, by March 1973, respondent was the fifth highest ranking official in the Washington, D.C., Post Office (id. at 52a). Moreover, the district court found that respondent introduced "no evidence of specific acts of discrimination against him" (id. at 54a) and no other direct "evidence that he was treated any differently because of his race" (id. at 53a). Finally, the district court found that respondent "produced no credible evidence that he was as qualified or more qualified than other individuals who were detailed or promoted during the period in question" (id. at 54a). For this reason, the district court held that respondent had "failed to present a prima facie case of racial discrimination" (id. at 59a). /3/ 3. The court of appeals did not overturn any of the district court's findings of fact, but by a 2-1 vote it reversed. The panel majority quoted the elements of a Title VII prima facie case first specified in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973) (Pet. App. 21a): (A) prima facie case of racial discrimination (may be established) by showing (i) that (the plaintiff) 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. The court of appeals then declared that "it is clear that (respondent) met the first, third and fourth elements of the test set forth in McDonnell Douglas: he is a black man; he sought promotion to higher level positions that became available; and white Post Office employees received the positions" (Pet. App. 21a-22a). The court of appeals therefore addressed only the question whether respondent was qualified for the positions in issue. The court of appeals concluded that the district court erroneously believed the second element of the McDonnell Douglas test to require a claimant to show that he was as qualified or more qualified than the persons hired in his stead. In fact, the court of appeals said, all that was required was that a claimant be qualified; and the court ruled, on the basis of its examination of the record, that respondent had shown that he was qualified for the position in issue (Pet. App. 22a-26a). The court of appeals accordingly held that respondent had established a prima facie case (Pet. App. 28a). It remanded for further proceedings at which "the government is * * * to be given the opportunity to offer the required proof concerning the legitimacy of the promotion decisions here in issue" (id. at 27a). /4/ This Court then granted our petition for a writ of certiorari, vacated the judgment of the court of appeals, and remanded the case to that court for further consideration in light of Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). Two Justices dissented (Pet. App. 10a-14a). On remand, the court of appeals again proceeded from the premise that only the second element of the McDonnell Douglas test -- requiring respondent to show that he was qualified for the position he sought -- was in issue (id. at 6a). /5/ The court of appeals also adhered to its ruling that the district court erred in holding that respondent failed to establish a prima facie case (ibid.), although it modified its earlier opinion by stating that in order to establish a prima facie case, a plaintiff must show more than that he "possesses the absolute minimum qualifications for a job * * * ; if the employer has indicated that certain additional qualifications are necessary or preferred, the plaintiff must demonstrate that he has those qualifications as well" (ibid.). /6/ Instead of finding that respondent had established a prima facie case, the court of appeals concluded that the district court "did not make findings on (respondent's) qualifications clear enough to permit us to determine if a prima facie case was established" (id. at 8a). The court of appeals accordingly ordered a remand to the district court (id. at 9a). SUMMARY OF ARGUMENT A. Respondent showed only that he was a qualified black applicant for a position, and that a white applicant who was at least as qualified was selected instead. The court of appeals held, both before and after this Court's remand, that such a showing is sufficient to establish a prima facie case of employment discrimination. This holding produces unacceptable results and is inconsistent with the principle that, in order to establish a prima facie case, a plaintiff must introduce evidence that "give(s) rise to an inference of unlawful discrimination" (Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981)). 1. Frequently, an employer will fill a vacancy by selecting from a group of qualified applicants. Whenever that group includes persons of different races -- or sexes, religions, or national origins -- at least one disappointed applicant will be able to show what respondent showed here: that he was qualified for the position he sought, and that a person of a different group received the position instead. Certainly if the disappointed applicant is a member of a minority group, and perhaps even if he is not, he will, under the court of appeal's approach, be able to establish a prima facie case of discrimination. Thus if the court of appeals' ruling stands, every employment decision made by selecting from a heterogeneous group of qualified applicants will automatically give rise to one -- and frequently to more than one -- prima facie case of employment discrimination. 2. This result, undesirable on its face, is also inconsistent with this Court's previous decisions. This Court has specified that in order to prove a prima facie case, a plaintiff must show circumstances giving rise to an inference of discrimination. But employers who do not discriminate can legitimately choose a qualified white over a black who is equally or less qualified; such a choice -- unaccompanied, as it was here, by any suspicious circumstances -- does not suggest that a discriminatory purpose was at work. The most that can be said of such a choice is that it leaves open the possibility that the employer may have discriminated; it falls markedly short of the showing of a probability of discrimination needed to establish a prima facie case. B. 1. A plaintiff who has in fact been discriminated against is likely to have many other ways of establishing a prima facie case. For example, a prima facie case would be established by a qualified minority applicant who showed that the decision to reject him was economically irrational -- either because it left open a vacancy (as in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)) or because the employer chose a less qualified candidate instead (as respondent unsuccessfully attempted to show here). Statistical evidence that an employer has consistently selected disproportionately few members of a minority group can also establish a prima facie case, as can a history of discrimination or anecdotal evidence showing racial prejudice. While some of this evidence will usually be in the possession of the employer, that is not a reason to excuse the plaintiff from introducing it as part of his prima facie case; the plaintiff can obtain it readily through discovery, or through the extensive administrative investigation to which he is entitled. Respondent, however, did not show either a pattern of discrimination or particular discriminatory acts. In addition, respondent was told the Postal Service's reasons for not promoting him during the administrative investigation of his case. In general, Title VII plaintiffs will be able to ascertain the reason for the allegedly discriminatory decision through the administrative process or by discovery. Once they learn that reason, they can establish a prima facie case by showing that it is a pretext. Moreover, in some circumstances, an employer's unjustified failure to provide a reason when it is properly requested during discovery or the administrative investigation may itself complete a qualified minority applicant's prima facie case. But respondent was provided a reason well before trial, and he failed to show that it was a pretext. 2. The court of appeals' approach also imposes excessive burdens on Title VII defendants, and on the courts that try Title VII actions. As a practical matter, if a plaintiff is held to have established a prima facie case -- and thus survives a motion to dismiss made after his case-in-chief -- the defendant must do more than articulate a reason for its action; the defendant must instead present all the evidence that supports its decision, in order to protect against the possibility that the judge will find its reason to be a pretext. This evidence will often consist of a detailed examination of the comparative qualifications of the plaintiff and the successful candidate. Particularly when, as in many managerial, professional, or government jobs, the basis for the selection is not easily quantified, the defense of the employment decision can be laborious and time-consuming. These burdens can be avoided, however, only if the plaintiff is held not to have established a prima facie case. If the plaintiff has genuinely raised an inference of discrimination, the employer should of course be required to defend its action. But an employer should not be subject to being compelled to present a full-scale defense of its decision every time it chooses from a heterogeneous group of qualified applicants; and that is what the court of appeals' decision effectively requires. ARGUMENT AN EMPLOYER'S SELECTION OF A QUALIFIED WHITE APPLICANT FOR A POSITION INSTEAD OF A QUALIFIED BLACK APPLICANT DOES NOT, WITHOUT MORE, ESTABLISH A PRIMA FACIE CASE OF EMPLOYMENT DISCRIMINATION A. Such a Selection Does Not Raise an Inference of Racial Discrimination 1. Respondent established that he was a qualified black applicant for the positions in issue, and that a white applicant received each position instead. But respondent established nothing more. He did not show, for example, that the Postal Service systematically treated whites more favorably than blacks; on the contrary, the district court explicitly found that the number of blacks in high-level positions at the Washington, D.C. Post Office increased during the period of the alleged discrimination against respondent. The district court also found that both blacks and whites were promoted to positions above respondent's during that time. Nor did respondent show a history of discrimination at the Post Office; respondent himself had been promoted (or offered promotions or other new positions) steadily after 1952. The court of appeals, although ruling in respondent's favor, similarly found "no indication that (respondent) was adversely affected by an employment policy or practice that consistently operated to hold him, or blacks as a class, in the lower echelons of employment" (Pet. App. 19a-20a n.1). The district court also found no direct evidence of racial discrimination by the officials responsible for denying respondent the positions he sought; that finding, too, was undisturbed on appeal. /7/ Respondent did not show that the white employees who received the promotions he sought were less qualified than he. Finally, the officials responsible for the challenged promotions and details provided reasons for their actions even before the trial began; those reasons were reflected in the Postal Service's explanation of its decision not to grant relief to respondent, and respondent did not show that those proffered reasons were implausible or a pretext for racial discrimination. In short, respondent showed only that he was a qualified black applicant, and that white applicants who were no less qualified received the positions he sought. The district court correctly held that this showing was insufficient to establish a prima facie case. But the court of appeals disapproved that holding, both before and after the remand from this Court. The court of appeals' opinions obscure the issue somewhat, because they focus on respondent's qualifications; the opinion issued after this Court's remand unaccountably complicates the "qualifications" element of the McDonnell Douglas prima facie case. /8/ But what is at issue here is not respondent's qualifications -- which the Postal Service does not question -- but the court of appeals' adherence to its view, apparently now well established in the District of Columbia Circuit, /9/ that a qualified black applicant establishes a prima facie case merely by showing that a no less qualified white applicant was preferred for the position. /10/ 2. This case, therefore, concerns the common situation in which an employer has one vacancy to fill and chooses from among several qualified applicants. The facts of this case provide a typical example: an employer intends to fill a position by promotion, and several employees who apply for the promotion have performed adequately in their jobs and otherwise have the necessary experience and qualifications for the promotion. In another common situation, an employer first compiles a list of several applicants, all of whom are qualified, and then chooses one applicant from the list on the basis of a more detailed inquiry into the candidates' abilities. In any such situation, the court of appeals would require a finding of a prima facie case whenever a black, a woman, or a member of another racial, religious, or ethnic minority was among the qualified applicants, and a person of a different race or sex was selected. The disappointed applicant would be able to show that he was qualified, that he applied for an available position, and that a member of a different group was selected instead; that is the court of appeals' definition of a prima facie case. See page 14 note 9, supra. If an employer's pool of qualified applicants is large and heterogeneous, a single employment decision will, therefore, automatically enable many disappointed applicants to establish a prima facie case. /11/ And since non-minority employees are also protected by Title VII (McDonald v. Sante Fe Trail Transportation Co., 427 U.S. 273 (1976)), it is at least arguable that every time an employer makes a selection from a heterogeneous group of qualified applicants, it automatically establishes a number of prima facie cases of employment discrimination against itself, no matter whom it selects. /12/ These results -- and the court of appeals' definition of a prima facie case, which necessarily spawns them -- cannot be correct. "An employer's isolated decision to reject an applicant who belongs to a racial minority does not show that the rejection was racially based." International Brotherhood of Teamsters v. United States, 431 U.S. 324, 358 n.44 (1977). In Texas Department of Community Affairs v. Burdine, supra, the Court explained the essential attribute of a prima facie case as follows (450 U.S. at 253; emphasis added): 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. The court of appeals' approach essentially ignores the italicized phrase in this definition. /13/ If abilities are distributed randomly through society, there will be a substantial number of cases in which an applicant who is not a member of a minority group can legitimately be preferred to a member of such a group. Of course, if an employer selects disproportionately few minority applicants, a rejected applicant should be able to establish a prima facie case. See pages 23-24, infra. But the most that can be said about the selection of a qualified non-minority applicant over a minority applicant in a single case -- unaccompanied by any suspicious circumstances -- is that it is not inconsistent with the hypothesis that the employer has discriminated. Such a selection merely makes it possible -- not probable -- that the employer has discriminated; by itself, it cannot be said to "give rise to an inference of" discrimination. There is no sufficient reason for requiring the inference that every employment action that could possibly be discriminatory, is discriminatory. /14/ The premise of the court of appeals' approach appears to be that "in our present society," racial discrimination is so pervasive that every choice of a white applicant over a qualified black -- even if the white is as qualified or more qualified -- "justifies an inference of prejudice" (Parker v. Baltimore & O.R.R., 652 F.2d 1012, 1017 (D.C. Cir. 1981)). We are not convinced that discrimination is so prevalent that "experience has proved that in the absence of any other explanation it is more likely than not that" the choice of a qualified white over an equally or less qualified black is "bottomed on impermissible considerations" (Furnco Construction Corp. v. Waters, 438 U.S. 567, 580 (1978)). Even if discrimination were that pervasive, however, unrefined generalizations about the level of discrimination in society would not justify finding a prima facie case of discrimination in a particular case solely because the bare possibility of discrimination had been established. All employers are not equally likely to discriminate, and complete reliance on a society-wide generalization is not justified when evidence bearing on whether a particular defendant tends to discriminate -- or whether a particular decision was discriminatory -- can be introduced instead. As we discuss (see pages 25-30, infra), where such evidence exists, it will generally be available to Title VII plaintiffs. A prima facie case should, therefore, be defined in a way that attempts to identify those particular decisions which are more likely to have been discriminatory. The court of appeals did not even attempt to construct such a definition. Moreover, while the court of appeals' approach is premised on its perception of the prevalence of discrimination, the court's approach would operate most harshly against those employers who have made efforts to bring minorities into their work force. As we have said, under the decision below, an employer who fills a vacancy from a racially (or sexually, etc.) diverse list automatically enables some disappointed applicant -- certainly any minority applicant not from the group of the successful candidate -- to prove a prima facie case of employment discrimination. An employer can avoid a prima facie case only if the pool of qualified applicants available to it is racially (and sexually, etc.) homogeneous. But frequently it is those employers who have made the greatest efforts to combat the effects of discrimination -- by actively recruiting minorities, by hiring minorities into positions in which they will gain the skills and experience needed for promotions, or by establishing special training programs for minorities -- who will create a heterogeneous group of qualified applicants from which to chose. 3. The court of appeals relied on McDonnell Douglas Corp. v. Green, supra, but the contrast between McDonnell Douglas and this case is instructive, and supports our position. The fourth element of the McDonnell Douglas test identified a circumstance that gave rise to an inference of discrimination -- "after (the complainant's) rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications" (411 U.S. at 802). The employer's decision to carry a vacancy rather than hire a qualified black or female applicant was also central to the prima facie case established by the plaintiffs in Furnco Construction Corp. v. Waters, supra (see 438 U.S. at 576) and Texas Department of Community Affairs v. Burdine, supra (see 450 U.S. at 254 n.6). /15/ The court of appeals, without addressing the issue, unjustifiably equated a decision to select a qualified white applicant over a qualified black with the decision to carry a vacancy instead of hiring a qualified black. /16/ An employer who seeks employees with certain qualifications for a position has presumably decided that it is to his advantage to fill the position with such an employee. Leaving the position vacant after a qualified candidate has applied is, on the surface, contrary to the employer's economic interests. Since ordinarly businesses do not knowingly act against their own economic interests, such behavior gives rise to a suspicion that other factors besides those that properly influence employment decisions played a role. But an employer who chooses one qualified applicant over another who is equally or less qualified does nothing contrary to its economic interests. Even when the disappointed applicant is a member of a minority group, this is the kind of choice that an employer who does not discriminate will routinely make. See Texas Department of Community Affairs v. Burdine, supra, 450 U.S. at 259 ("(T)he employer has discretion to choose among equally qualified candidates, provided the decision is not based upon unlawful criteria."); Griggs v. Duke Power Co., 401 U.S. 424, 436 (1971) ("Congress has not commanded that the less qualified be preferred over the better qualified simply because of minority origins."). Unless there is some other circumstance that gives rise to an inference of discrimination, such a choice, standing alone, does not create a prima facie case of employment discrimination. B. Requiring More Than a Showing That a Qualified Non-Minority Applicant Was Chosen Over a Qualified Minority Applicant Is Not Unfair to Plaintiffs and Avoids Placing Unwarranted Burdens on Employers 1. A plaintiff has ample alternative means of establishing a prima facie case 1. As we have suggested, a plaintiff who is in fact a victim of discrimination is likely to have many ways of establishing a prima facie case. A plaintiff can, for example, take advantage of the fact that discrimination is, in general, economically irrational; it is contrary to "(t)he broad, overriding interest, shared by employer, employee, and consumer, (in) efficient and trustworthy workmanship assured through fair and racially neutral employment and personnel decisions." McDonnell Douglas Corp. v. Green, supra, 411 U.S. at 801. See Contractors Association of Eastern Pennsylvania v. Secretary of Labor, 442 F.2d 159, 170-171 (3d Cir.), cert. denied, 404 U.S. 854 (1971); Fiss, A Theory of Fair Employment Laws, 38 U. Chi. L. Rev. 235, 249-253 (1971). Consequently, a victim of discrimination will sometimes be able to show that the decision he challenges was contrary to the employer's economic interest, and -- as we have discussed in connection with McDonnell Douglas itself -- such a showing should generally be sufficient to raise an inference of discrimination. Respondent, for example, might have established a prima facie case if he had shown that he was better qualified than the successful white applicants; a decision to hire a less well-qualified applicant is, on its face, economically disadvantageous to the employer. Although the district court understandably emphasized respondent's failure to show that he was more qualified than the successful applicants, /17/ we have never suggested that this is the only way in which a plaintiff might prove a prima facie case. There are other possible approaches, one or more of which should prove fruitful to a plaintiff who has in fact been discriminated against. /18/ For example, discriminatory bias is, as the term itself suggests, generally a trait or tendency possessed by a decisionmaker -- whether the decisionmaker is an institution or a particular supervisory employee -- and therefore tends to be manifested with some regularity. As a result, a victim of discrimination should generally be able to point to other decisions or actions, besides the one he is challenging, that evidence racial prejudice. Thus statistical "(e)vidence of longlasting and gross disparity between the (racial) composition of a work force and that of * * * the pool of qualified job applicants" (International Brotherhood of Teamsters v. United States, supra, 431 U.S. at 340 n.20) is frequently used to establish a prima facie case of discrimination against individual applicants. See id. at 359 & n.45; Hazelwood School District v. United States, 433 U.S. 299, 308 n.13 (1977); McDonnell Douglas Corp. v. Green, supra, 411 U.S. at 804-805; Davis v. Califano, 613 F.2d 957, 962 (D.C. Cir. 1979); Donaldson v. Pillsbury Co., 554 F.2d 825, 833 (8th Cir.), cert. denied, 434 U.S. 856 (1977). "If race or sex bias in fact infects selection across-the-board * * * it should not be impossible to assem(b)le the evidence from which a pattern of discrimination can be inferred." Valentino v. United States Postal Service, 674 F.2d 56, 73 (D.C. Cir. 1982) (Ginsberg, J.). Moreover, since Title VII was not enacted until 1964, a victim of discrimination will often be able to show a history of more overt discrimination by an employer; /19/ when coupled with a showing that "relevant aspects of the decisionmaking process had undergone little change" (Hazelwood School District v. United States, supra, 433 U.S. at 309-310 n.15), this too may be enough to establish a prima facie case. See ibid.; Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 267 (1977). Nor does this exhaust the ways in which a victim of discrimination might be able to establish a prima facie case. Anecdotal evidence has often been used to show that "the supervisory * * * employees having responsibility (for the challenged decision) * * * betrayed in other matters a predisposition towards discrimination against members of the involved minority" (Pettit v. United States, 488 F.2d 1026, 1033 (Ct. Cl. 1973)), although inevitably the district court will have to evaluate the import of such evidence. A typical showing might consist of remarks that betray prejudice or sterotyped thinking (e.g., id. at 1028; Crawford v. Western Electric Co., 614 F.2d 1300, 1314 (5th Cir. 1980)), inconsistent actions in a supervisory role that suggest discrimination (see, e.g., Kunda v. Muhlenberg College, 621 F.2d 532, 540, 546 (3d Cir. 1980); Causey v. Ford Motor Co., 516 F.2d 416, 423 (5th Cir. 1975)), or a failure to correct the discriminatory acts of subordinates (compare Hagans v. Andrus, 651 F.2d 622, 626-627 (9th Cir. 1981), cert. denied, 454 U.S. 859 (1981), with Wright v. National Archives and Records Service, 609 F.2d 702, 715-716 & n.16 (4th Cir. 1979)). We recognize that some of these kinds of evidence may be more readily available to the employer than to a plaintiff. The extent to which this is true should not be overstated; anecdotal evidence, for example, is likely to be more readily available to an employee, and the employee may be able to obtain much other information through his union. See International Union of Electrical Workers v. NLRB, 648 F.2d 18 (D.C. Cir. 1980). But even if the information were in the sole possession of the employer, that would not be a sufficient reason to excuse the plaintiff from having to introduce it as part of his prima facie case. Plaintiffs' prima facie cases in other areas of the law frequently include elements that can more easily be demonstrated by the defendant; in some tort actions, for example, plaintiffs must prove facts about the defendant's state of mind or about the reasonableness of various practices in the defendant's business or profession. See McCormick's Handbook of the Law of Evidence 787 (2d ed. E. Cleary 1972). Commentators have recognized that the importance of the parties' relative access to information can easily be overstated as a factor in defining a prima facie case. See, e.g., 9 J. Wigmore, Evidence Section 2486, at 290-291 (J. Chadbourn ed. 1981); Cleary, Presuming and Pleading: An Essay on Jusristic Immaturity, 12 Stan. L. Rev. 5, 12 (1959). Indeed, evidence of several of the undisputed elements of a McDonnell Douglas prima facie case -- such as the existence of a vacancy and the claimant's qualifications -- is under the immediate control of the employer. Like any other plaintiff, Title VII plaintiff can, of course, invoke the discovery provisions of the Federal Rules of Civil Procedure. See Texas Department of Community Affairs v. Burdine, supra, 450 U.S. at 258. "Expanded pretrial discovery would seem to have diminished greatly (the) importance" of placing the burden of production on the party in possession of the information. McCormick's Handbook on the Law of Evidence, supra, at 787. Moreover, Title VII Plaintiffs in particular have another means of ready access to information held by the employer. Federal employees who allege discrimination are entitled to an elaborate administrative process, consisting of conciliation efforts by an Equal Employment Opportunity Counselor (29 C.F.R. 1613.213), an investigation by an agency official (29 C.F.R. 1613.216), a hearing before a Complaints Examiner (29 C.F.R. 1613.218), and review by the agency and then the Equal Employment Opportunity Commission (29 C.F.R. 1613.221, 1613.231-1613.236). The investigation must be "a thorough review of the circumstances under which the alleged discrimination occurred, the treatment of members of the complainant's group * * * compared with the treatment of other employees in the organizational segment in which the alleged discrimination occurred, and any policies and practices related to the work situation which may constitute, or appear to constitute, discrimination even though they have not been expressly cited by the complainant" (29 C.F.R. 1613.216(a)). Witnesses giving testimony in the investigation are sworn, and agency employees are required to cooperate with the investigation (29 C.F.R. 1613.216(a), (b)). Any witnesses whom the complainant seeks to have appear at the hearing must do so unless the Complaints Examiner gives the complainant reasons, on the record, for disapproving the request, or the witness's appearance is administratively impractical; in the latter case, the witness is to provide testimony by written interrogatories (29 C.F.R. 1613.218(e)). The witness are subject to cross-examination, and "(i)nformation having a bearing on the complaint or employment policy or practices relevant to the complaint shall be received in evidence" (29 C.F.R. 1613.218(c)(2)). Thus the administrative record -- the documents compiled in the investigations, the records of the hearings, as well as the recommendations and findings of the reviewing officials -- may well contain the evidence the plaintiff needs to prove a prima facie case. This record is made available to the complainant (29 C.F.R. 1613.217, 1613.221(b)(2), 1613.222). See EEOC v. Associated Dry Goods Corp., 449 U.S. 590 (1981). In sum, it should not be "onerous" (Texas Department of Community Affairs v. Burdine, supra, 450 U.S. at 253) for a claimant to obtain the evidence he needs to raise an inference of discrimination -- if that evidence exists. 2. The employer's reason for rejecting the claimant's application will ordinarily be ascertained during the investigation. Indeed, one of the virtues of the administrative inquiry is that it is likely to cause the responsible officials to give an account of their actions in a setting less artifical than a trial months or years after the event. In this case, for example, the Complaints Examiner investigated and then specifically described the reasons given by the responsible officials for denying respondent the promotions and details at issue here. If the reasons for the employer's action is not ascertained during the administrative process, a plaintiff can always inquire into it during discovery. Once an employer has given a reason, the plaintiff will be able to explore other ways of raising an inference of discrimination. See Flowers v. Crouch-Walker Corp., 552 F.2d 1277, 1282 (7th Cir. 1977). For example, he may show that the reason is based on a factual premise that the employer did not really believe or "was so ridden with error that (the employer) could not honestly have relied upon it" (Lieberman v. Gant, 630 F.2d 60, 65 (2d Cir. 1980)), or that the employer acts according to the proffered reason only when employees of a certain race or sex are involved (see, e.g., Taylor v. Philips Industries, Inc., 593 F.2d 783, 786 (7th Cir. 1979); United States v. Lee Way Motor Freight, Inc., 625 F.2d 918, 930-931 (10th Cir. 1979)). Such a showing, when made by a qualified minority applicant, should be sufficient to establish a prima facie case. Thus respondent might have had a prima facie case if he had shown that his supervisors did not believe that the transfers and promotions he rejected would make him better suited for the positions he unsuccessfully sought, or that similarly situated white employees' rejections of such opportunities did not count against them. Respondent had an opportunity to make such a showing -- because he learned the reason for his rejection during the administrative proceedings, at the latest -- but he failed to do so. Moreover, while the question is not presented here, we suggest that, at least in some circumstances, an employer's unjustified failure to provide a reason for his action, when asked to do so during discovery or an administrative investigation, may itself complete the prima facie case of a qualified minority applicant. "(M)ore often than not people do not act in a totally arbitrary manner, without any underlying reasons, especially in a business setting." Furnco Construction Corp. v. Waters, supra, 438 U.S. at 577. Of course, an employer who has a reason for his action may have a legitimate explanation for not divulging it. Since respondent was provided with a reason, it is unnecessary to consider in this case what possible justifications might excuse an employer's failure to provide a reason. See generally In re Dinnan, 661 F.2d 426 (5th Cir. 1981), cert. denied, No. 81-1714 (June 7, 1982). But in the absence of such a justification, since most employers can be expected to have a reason for their employment decisions, a refusal to supply a reason in response to a proper request suggests that the true reason is an impermissible one. /20/ 3. A victim of employment discrimination should, therefore, have abundant opportunities to establish a prima facie case. He can show that he was better qualified than the applicant who was selected, or that the challenged employment decision appears in some other respect to be economically irrational. He can show statistical or other evidence of a discriminatory bias that manifests itself in a pattern of conduct or in other particular instances. The information he needs to make these showings should be readily available through discovery or in the administrative investigation. Finally, the claimant can ask the reason for his rejection. If a reason is supplied, he can attempt to show that it was a pretext. If a reason is unjustifiably not supplied, that alone may complete the prima facie case. In short, if there exists evidence that gives rise to an inference of discrimination -- instead of just creating a bare possibility of discrimination -- a plaintiff should be able to obtain it and introduce it as part of his prima facie case. There is accordingly no need to adopt the court of appeals' approach in order to ensure that a plaintiff with a good claim of employment discrimination will be able to establish a prima facie case. 2. A defendant should not be required to present a defense in an employment discrimination action unless the plaintiff shows more than the court of appeals required. In Texas Department of Community Affairs v. Burdine, supra, the Court held that when a plaintiff establishes a prima facie case of disparate treatment, the defendant need only articulate, not prove by a preponderance of the evidence, a legitimate reason for the challenged employment decision. Burdine described the basic order of proof in a disparate treatment case (450 U.S. at 252-253, quoting McDonnell Douglas Corp. v. Green, supra, 411 U.S. at 802, 804): 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." * * * 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. Out of context, this passage could be read to suggest that the only consequence of a plaintiff's establishing a prima facie case is that the employer must articulate a reason for the challeneged action. As we have said, this will ordinarily not be difficult for an employer who has not discriminated. It might therefore be argued that the court of appeals' approach, even if erroneous in some sense, is not unduly burdensome to a defendant. This argument is incorrect, and is indeed belied by Burdine itself. Ordinarily in Title VII litigation, the defendant will, at the close of the plaintiff's case, make a motion to dismiss under Fed. R. Civ. P. 41(b). If the plaintiff has established a prima facie case, this motion must be denied. But if the motion is denied, the defendant ordinarily will not just articulate a reason; as the Court said in Burdine, "the defendant * * * retains an incentive to persuade the trier of fact that the employment decision was lawful, (and therefore) the defendant normally will attempt to prove the factual basis for its explanation" (450 U.S. at 258). In other words, the defendant not only will articulate the reason for its decision but will attempt to show that its reason was not a pretext. In doing so, the defendant will, for example, introduce evidence that the plaintiff in fact had the shortcoming assigned as the reason for his rejection; that the successful candidate did not have that shortcoming or was otherwise better qualified; or that its practices generally show no sign of discrimination. See McDonnell Douglas Corp. v. Green, supra, 411 U.S. at 804-805. That is, the defendant will ordinarily present its entire case. It must do so because once the motion to dismiss has been denied, there is always some risk that the trial court will find the defendant's proffered reason "unworthy of credence" (Texas Department of Community Affairs v. Burdine, supra, 450 U.S. at 256), or will conclude that "the plaintiff's initial evidence, combined with * * * cross-examination of the defendant, * * * suffice(d) to discredit the defendant's explanation" (id. at 255 n.10). However weak the plaintiff's case may appear to be, the defendant cannot prudently offer less than all the available evidence in support of its explanation. /21/ This is often a very burdensome aspect of Title VII litigation. See Lieberman v. Gant, supra, 630 F.2d at 62 n.1; Johnson v. Univeristy of Pittsburgh, 435 F. Supp. 1328, 1332 (W.D. Pa. 1977). Not only may the defendant introduce statistical and other background information, but the court and the parties will probably be forced to examine in detail the employment qualifications of the plaintiff and those who were hired in his place. /22/ See East v. Romine, Inc., 518 F.2d 332, 339 (5th Cir. 1975) ("(C)omparative evidence lies at the heart of a rebuttal of a prima facie case of employment discrimination."). Particularly when the employees work in a bureaucracy, many criteria may be used to evaluate them, and the judgments and impressions of the large number of people who come into contact with them can be relevant; one can imagine, for example, the evidentiary inquiry needed to determine if the employer's explanation that a candidate was selected because he was more compatible with his co-workers -- a common and ordinarily reasonable explanation (see, e.g., Burdine v. Texas Department of Community Affairs, 647 F.2d 513, 514 (5th Cir. 1981)) -- was a pretext. See also page 29 not 20, supra. In general, the only way to avoid such inquiries is a dismissal of the complaint under Rule 41(b) (or a grant of summary judgment) on the ground that the plaintiff has failed to prove a prima facie case. We of course recognize that if a plaintiff has genuinely raised an inference that he was discriminated against, the defendant should be required to present the appropriate evidence in response. But as we have explained, the court of appeals' approach would enable a plaintiff to establish a prima facie case -- and thereby force an employer to present an extensive defense of its action -- whenever any disappointed qualified applicant was of a different sex, race, religion, or national origin from the successful applicant. In other words, the effect of the court of appeals' approach is to compel employers to mount a full-scale defense, in court, of routine employment decisions that show no sign of being discriminatory. We do not believe Title VII was intended to have that effect. /23/ CONCLUSION The judgment of the court of appeals should be reversed. Respectfully submitted. REX E. LEE Solicitor General J. PAUL MCGRATH Assistant Attorney General LAWRENCE G. WALLACE Deputy Solicitor General DAVID A. STRAUSS Assistant to the Solicitor General ROBERT S. GREENSPAN MARLEIGH D. DOVER Attorneys JUNE 1982 /1/ At the time respondent filed his charge, Civil Service regulations issued under Section 717(b) of the Civil Rights Act, 42 U.S.C. 2000e-16(b), required that an administrative complaint be filed within 30 days of an alleged violation. 5 C.F.R. 713.214 (1974). The district court ruled that respondent filed a timely complaint only with regard to details and promotions of four positions -- Mail Processing Officer, Acting Mail Processing Representative, Director of the Operations Division, and Customer Services Representative (Pet. App. 50a). Although much of the evidence presented at the trial concerned respondent's allegation that he was discriminatorily denied a promotion to the position of Postmaster, and the district court made findings on the merits of this claim and resolved it adversely to respondent -- noting, for example, that a black candidate was selected (Pet. App. 54a-57a) -- the district court apparently considered this claim time-barred as well (id. at 50a). The district court also noted that respondent "was aware of the * * * complaints process (because h) ewas chairman of the Postmaster's E.E.O. (Equal Employment Opportunity) Committee for a period of three years, and at the time he filed his complaint he had been the E.E.O. Administrative Officer for the District of Columbia Post Office for approximately two years" (id. at 50a-51a). The court of appeals affirmed the district court's ruling that respondent filed a timely complaint only with regard to the four positions (Pet. App. 19a-20a & nn.1, 2). This Court declined to review that aspect of the court of appeals' decision. 453 U.S. 912 (1981). /2/ In the record this document is appended to the Decision of the United States Civil Service Commission Appeals Review Board (Jan. 13, 1977). /3/ The district court's finding that respondent failed to establish a prima facie case differed from its initial view. During the trial, at the close of respondent's case, the Postal Service moved to dismiss the complaint on the ground that respondent had failed to establish a prima facie case. Tr. 256; see Pet. App. 47a. The district court denied this motion, saying that "while it certainly is not the strongest case I have ever heard, I think he just gets under the wire" (Tr. 259). The government then introduced its evidence. When the district court entered its formal findings of fact, however, it had apparently reconsidered, and it explicitly ruled that respondent failed to establish a prima facie case. Certain portions of the district court's opinion can plausibly be read to hold that even if respondent did establish a prima facie case, the government rebutted it and respondent did not carry his ultimate burden of proving racial discrimination. See Pet. App. 58a-59a; id. at 47a-48a (opinion of Wilkey, J., on petitions for rehearing). But the court of appeals expressly rejected this reading of the district court's opinion (id. at 44a-45a) and instead interpreted the opinion as holding simply that respondent failed to establish a prima facie case. We do not now challenge this interpretation of the district court's holding. /4/ Judge Wilkey, in dissent, criticized the majority for considering only "minimal objective criteria for qualifications" (Pet. App. 37a) instead of "comparative criteria" (id. at 36a); the latter, he said, were more suited to evaluating employers' decisions to hire and promote managerial employees (id. at 38a). He would have remanded the case to the district court for a finding on respondent's qualifications "based on relative as well as absolute criteria of qualification" (id. at 40a). /5/ In our petition, we acknowledged that respondent possessed the minimum qualifications for the positions in issue (80-1737 Pet. I, 4, 7, 9). We argued that the court of appeals' error was finding a prima facie case when respondent failed to show any circumstances comparable to the fourth element of the McDonnell Douglas test (80-1737 Pet. 5, 7) -- that is, any "'circumstances which give rise to an inference of unlawful discrimination'" (id. at 7, quoting Texas Department of Community Affairs v. Burdine, supra, 450 U.S. at 253). The court of appeals did not request briefing or argument after thie Court's remand. /6/ In this opinion, the court of appeals repeatedly referred to the district court's "grant of summary judgment" in favor of the Postal Service (Pet. App. 2a; see id. at 3a, 9a). In fact, the district court entered judgment only after a full trial. See pages 5-6 note 3, supra. /7/ While respondent has asserted that there was evidence of racially derogatory remarks by a supervisor (Br. in Opp. 3), the district court's findings reflect no such evidence, and the court of appeals did not rely on -- or even mention -- any such evidence in overturning the district court's holding that respondent failed to establish a prima facie case. /8/ In its opinion after the remand from this Court, the court of appeals appeared to hold that, in order to establish a prima facie case, respondent would have to "demonstrate( ) that his rejection did not result from 'an absolute or relative lack of qualifications'" (Pet. App. 8a, quoting International Brotherhood of Teamsters v. United States, 431 U.S. 324, 358 n.44 (1977)). But the district court found that respondent was not as well qualified or better qualified than the successful applicants (Pet. App. 54a, 59a), and the court of appeals did not declare that finding to be clearly erroneous. It is therefore unclear why the court of appeals thought further proceedings were needed to determine if respondent was rejected because of a "relative lack of qualifications." At another point in its second opinion, however, the court of appeals indicated that it was modifying its earlier opinion only to the extent of holding that a plaintiff "may be required to go beyond a showing of minimum qualifications to demonstrate that he possesses whatever qualifications or background experiences the employer has indicated are important" (Pet. App. 8a; see id. at 6a). This passage appears to refer not to the distinction between absolute and relative qualifications but to a separate distinction between objective and subjective qualifications. We agree with the court of appeals (Pet. App. 7a) that defining the qualifications for professional and managerial positions raises difficulties often not encountered in defining the qualifications of blue-collar workers. See generally Pet. App. 32a-40a (Wilkey, J. dissenting); Bartholet, Application of Title VII to Jobs in High Places, 95 Harv. L. Rev. 947 (1982); Waintroob, The Developing Law of Equal Employment Opportunity at the White Collar and Professional Level, 21 Wm & Mary L. Rev. 45 (1979). But these questions are not presented here because, as the case comes to this Court, respondent's qualifications, however defined, are not in issue; we do not contend that respondent was unqualified for the positions he sought, and respondent has failed to show that he was better qualified than those who were selected. See also page 23 note 18, infra. /9/ In Bundy v. Jackson, 641 F.2d 934, 951 (1981), for example, the District of Columbia Circuit stated: (T)o make out a prima facie case the plaintiff must show that she belongs to a protected group, that she was qualified for and applied for a promotion, that she was considered for and denied the promotion, and that other employees of similar qualifications who were not members of the protected group were indeed promoted at the time the plaintiff's request for promotion was denied. Accord, Valento v. United States Postal Service, 674 F.2d 56, 63 (D.C. Cir. 1982); Daye v. Harris, 655 F.2d 258, 262 n.11 (D.C. Cir. 1981); Parker v. Baltimore & O.R.R., 652 F.2d 1012, 1017 (D.C. Cir. 1981). The court of appeals of at least two circuits have rejected the District of Columbia Circuit's approach. Hagans v. Andrus, 651 F.2d 622, 626 (9th Cir.), cert. denied, 454 U.S. 859 (1981); Olson v. Philco-Ford, 531 F.2d 474 (10th Cir. 1976). But see Mortensen v. Callaway, 28 Empl. Prac. Dec. (CCH) 24352, 24353 (10th Cir. Mar. 18, 1982). The Court of Claims has also specified that a qualified minority applicant proves a prima facie case by showing that "the supervisory level employees having responsibility to exercise judgment under the promotion system betrayed in other matters a predisposition towards discrimination against members of the involved minority." Pettit v. United States, 488 F.2d 1026, 1033 (1973). In Olson, the Tenth Circuit remarked (531 F.2d at 478): "To make a prima facie case in a situation such as that before us something more is needed than proof that a qualified male was chosen over a qualified female. If nothing more is needed, we have indeed opened Pandora's box." /10/ Respondent alleged that he was the victim of intentional discrimination, and both the district court and the court of appeals viewed this case as one of "disparate treatment," not "disparate impact." See Texas Department of Community Affairs v. Burdine, supra, 450 U.S. at 252 n.5; International Brotherhood of Teamsters v. United States, supra, 431 U.S. at 324, 335-336 n.15. We accordingly intend our discussion of the definition of a prima facie case to apply only to claims of disparate treatment. /11/ Some courts apparently would permit each applicant whose prima facie case was not rebutted to receive a full back pay award, even if there were only one vacancy. See, e.g., Jordan v. Dellway Villa, 661 F.2d 588, 594-595 (6th Cir. 1981); Kyriazi v. Western Electric Co., 465 F. Supp. 1141, 1146 (D.N.J. 1979). /12/ In Daye v. Harris, 655 F.2d 258, 262 n.11 (1981), the District of Columbia Circuit held, on the basis of McDonald v. Santa Fe Trail Transportation Co., that a white applicant could prove a prima facie case of racial discrimination by showing "that she was qualified for a position, that she was rejected, and that the defendant chose a similarly qualified applicant of another race. That she is white is no impediment to this suit * * * ." But in Parker v. Baltimore & O.R.R., 652 F.2d 1012 (1981), the District of Columbia Circuit ruled that this holding of Daye would apply only "when background circumstances support the suspicion that the defendant is the unusual employer who discriminates against the minority" (id. at 1017). The court identified several such circumstances -- a disproportionately large number of minority promotions; a "racially discriminatory environment"; and "unlawful consideration of race as a factor in hiring in the past" (id. at 1017-1018). In our view, it is reasonable to require any plaintiff to show comparable background circumstances. See pages 21-30, infra. Moreover, Title VII prohibits the federal government from discriminating on the basis of "race, color, religion, sex, or national origin." Many plaintiffs will be able to show that they belong to a "minority" -- that is, a group that has been historically disadvantaged -- with respect to one of these criteria. /13/ Even before Burdine, the courts of appeals generally understood that the elements specified in McDonnel Douglas constitute a prima facie case because they give rise to an inference of discrimination. See, e.g., Liebermann v. Gant, 630 F.2d 60, 63 n.2 (2d Cir. 1980); Meyer v. Missouri State Highway Commission, 567 F.2d 804, 808 (8th Cir. 1977), cert. denied, 435 U.S. 1013 (1978); Chavez v. Temple Union High School District No. 213, 565 F.2d 1087, 1091 (9th Cir. 1977). See generally Alexander v. Gardner-Denver Co., 519 F.2d 503, 505 (10th Cir. 1975), cert. denied, 423 U.S. 1058 (1976); Peters v. Jefferson Chemical Co., 516 F.2d 447, 449-450 (5th Cir. 1975). /14/ The McDonnell Douglas prima facie case is "a legally mandatory, rebuttable presumption." Texas Department of Community Affairs v. Burdine, supra, 450 U.S. at 254-255 nn.7, 8, citing 9 J. Wigmore, Evidence Sections 2491, 2494 (3d ed. 1940); see Flowers v. Crouch-Walker Corp., 552 F.2d 1277, 1283 n.4 (7th Cir. 1977). But "(a) presumption is based * * * upon the probative strength, as a matter of reasoning and inference, of the evidentiary fact." 9 J. Wigmore, Evidence Section 2491, at 304 (J. Chadbourn ed. 1981). "(T)he most important consideration in the creation of presumptions is probability. Most presumptions have come into existence primarily because the judges have believed that proof of fact B renders the inference of the existence of fact A so probable that it is sensible and time-saving to assume the truth of fact A until the adversary disproves it." McCormick's Handbook of the Law of Evidence 807 (2d ed. E. Cleary 1972). Here, fact A is intentional discrimination; fact B -- the prima facie case -- should therefore be evidence making discrimination probable, not merely possible. Otherwise, there is no proper basis for concluding that "(i)f 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 Department of Community Affairs v. Burdine, supra, 450 U.S. at 254. /15/ In addition, in Burdine the plaintiff was denied a promotion in favor of a person who had been under her supervision. 450 U.S. at 254 n.6. /16/ The court of appeals made this equation explicit in Bundy v. Jackson, supra, 641 F.2d at 951. /17/ Respondent's credentials (detailed by the court of appeals (Pet. App. 22a-24a)) are impressive (although not all necessarily pertinent to his ability to perform the Postal Service jobs in issue), and the district court may have considered them to be respondent's principal method of attempting to show a prima facie case. But the district court found (id. at 54a, 59a) that respondent did not show that he was more qualified than those who were selected, and the court of appeals did not overturn this finding. /18/ For this reason, we believe it promotes clarity to confine the second element of the McDonnell Douglas definition (referring to whether the plaintiff was qualified) to minimal, absolute qualifications, not relative qualifications. See pages 13-14 note 8, supra. For purposes of that element, an applicant is qualified if he crosses a certain "threshold" (Valentino v. United States Postal Service, 674 F.2d 56, 71 n.24 (D.C. Cir. 1982)); one might say that he is qualified so long as he is not unqualified. Many applicants can, therefore, be qualified. See, e.g., Powell v. Syracuse University, 580 F.2d 1150, 1155 (2d Cir.), cert. denied, 439 U.S. 984 (1978); Flowers v. Crouch-Walker Corp., 552 F.2d 1277, 1283 (7th Cir. 1977). The Court has consistently used the term in this way. See, e.g., Texas Department of Community Affairs v. Burdine, supra, 450 U.S. at 254 n.6, 259; Furnco Construction Corp. v. Waters, supra, 438 U.S. at 576 & n.8; McDonnell Douglas Corp. v. Green, supra, 411 U.S. at 802-803. By the same token, a plaintiff who attempts to establish a prima facie case by showing that he is more qualified than the successful candidate cannot rely solely on the qualifications specified by the employer at the time the employer seeks applications. An employer may select among eligible (that is, minimally qualified) applicants on some basis different from those specified by the eligibility criteria; it is unrealistic to expect an employer to enumerate, when he advertises a vacancy, all the reasons he may have for ultimately preferring one candidate. Indeed, an employer might realize that a particular quality or attribute would be desirable for the position he is filling only when he sees that quality in an applicant. /19/ Congress extended the protections of Title VII to federal employees in 1972. Equal Employment Opportunity Act of 1972, Section 11, Pub. L. No. 92-261, 86 Stat 111, codified at 42 U.S.C. 2000e-16; see Morton v. Mancari, 417 U.S. 535, 547 (1974). Although racial discrimination in federal employment had previously been unlawful (see Bolling v. Sharpe, 347 U.S. 497 (1954); 5 U.S.C. (Supp. III) 7201(b)), Congress found it to be "entrenched" (H.R. Rep. No. 92-238, 92d Cong., 1st Sess. 24 (1971)) and pervasive. See Brown v. General Services Administration, 425 U.S. 820, 825-828 (1976). /20/ The Court has made it clear that an employer need not provide a reason that is somehow objective or quantifiable; an employment decision may rest on the employer's subjective evaluation of the candidates' attributes. See McDonnell Douglas Corp. v. Green, supra, 411 U.S. at 803-804. "(W)here * * * the employer in the best of faith merely weighed each person's talents then (chose) the man over the woman (or the woman over the man), no case is made out under Title VII." Pond v. Braniff Airways, Inc., 500 F.2d 161, 165 (5th Cir. 1974). See also Scott v. University of Delaware, 601 F.2d 76, 81 (3d Cir.), cert. denied, 444 U.S. 931 (1979) (applicant for faculty position rejected because faculty believed he "would not develop into an acceptable permanent professional colleague"); Shack v. Southworth, 521 F.2d 51, 55 (6th Cir. 1975) (applicant not hired because of his "attitude" and "lack of desire"). /21/ In its first opinion, the court of appeals said that on remand the government was to introduce "proof concerning the legitimacy of the promotion decisions here at issue," including evidence comparing respondent's qualifications to those of the employees who received the positions he sought (Pet. App. 27a). /22/ In Liebermann, Judge Friendly commented (630 F.2d at 62 n.1): "We do not understand how either the federal courts or universities can operate if the many adverse tenure decisions against women or members of a minority group that must be made each year are regularly taken to court and entail burdens such as those here incurred." In Johnson, after a five-day hearing to determine whether the plaintiff had a prima facie case, the trial lasted 74 days. 435 F. Supp. at 1332. At its conclusion, the complaint was dismissed. See also Vuyanich v. Republic National Bank, 505 F. Supp. 224, 232 (N.D. Tex. 1980). "It is little wonder that some courts have expressed concern at the spectacle of trials lasting for weeks, following years of discovery, and involving a multitude of statistical and other experts and seemingly endless testimony about the credentials of a single candidate. These cases are just not worth it, from the point of view of litigants, courts, or society generally, unless broad issues related to the legality of entire job systems are to be considered." Bartholet, Application of Title VII to Jobs in High Places, 95 Harv. L. Rev. 947, 1002 (1982). /23/ An alternative way of resolving the problem created by the court of appeals' approach would be to divide into two subsidiary stages the third stage of litigation identified in the passage in Burdine quoted at page 31, supra. Disparate treatment litigation would then have four stages: (1) the plaintiff must introduce some quantum of evidence sufficient to require the employer to articulate a reason for the challenged decision; (2) the employer must articulate a reason (if he has not already done so in discovery or the administrative process); (3) the plaintiff then must adduce evidence (or point to evidence he has already adduced) sufficient to show that the employer's explanation is a pretext; and (4) the employer than has an opportunity to rebut that evidence. See Lieberman v. Gant, supra, 630 F.2d at 65-66. The fourth stage is the most burdensome for the defendant; the crucial question, therefore, is what the plaintiff must show to be entitled to survive a Rule 41(b) motion at the end of stage (3). Our discussion of a prima facie case in this brief is intended to answer that question. Such a four-stage process -- with motions to dismiss in order at two separate points -- would be unconventional, however, and quite unlike the customary civil suit in which the plaintiff presents a single case-in-chief followed by the defendant's case-in-chief. Rule 41(b) itself seems to contemplate only two cases-in-chief. Moreover, as we have said, the defendant's explanation is often available (and often should be made available) before the trial even begins.