Prior to 1973, it was almost impossible for a person of color to prove racial discrimination in the workplace. The burden was on the poor soul to damn near prove that racism was in the heart of his or her employer (proving intent). The landmark case of Green v McDonnell Douglas Corp., which turns 40 years old on May 14, fundamentally shifted that burden. The anniversary is an appropriate time to examine this critical U.S. Supreme Court case to measure its potency for today’s more sophisticated forms of harmful practices by employers.
Percy Green is a St. Louis civil right icon known for his fervent struggle to win decent-paying jobs for black folks. He had led several ACTION protests in the months leading up to his looming termination, including the infamous climbing of the unfinished Gateway Arch. It was discovered that there were no black contractors or black workers on the federally funded project.
I think McDonnell Douglas figured out that the Percy Green who was causing the government and other corporations grief around their employment practices was the very same Percy Green who worked from them. In a cold-blooded move by McDonnell Douglas (now Boeing), he was “fired” in 1964 on his 29th birthday.
At the time Green worked for the company, African Americans were a mere five percent of its 30,000-person workforce. Green was the only black research and development technician out of a unit of over 100 whites. It didn’t take long for McDonnell Douglas to become the unapologetic target of ACTION protests.
Several months later, Green saw his original job as a radio and electric mechanic being advertised in the newspaper. He intentionally applied for it after Title VII of the 1964 Civil Rights went into effect on July 2, 1965 to give greater weight to his claims of racial discrimination.
Green’s case went all the way to the U.S. Supreme Court to become a landmark case. Civil rights attorney Lou Gilden argued the case which eventually was decided on May 14, 1973. It is often referred to as one of the most-cited cases in the High Court’s history.
The case was a game changer. The ruling basically said that if you were in one of the protected class and gave evidence of your specific discrimination, the burden of proof was shifted to the employer. In short, the script was flipped to favor victimized employees. Workers no longer had to the burden of proof to expose real-life discrimination, such as unjustified firings, denied salary increases comparative to their counterpart, being skipped over for promotions that were given to less-qualified workers (sometimes even having to train them), etc.
There were many beneficiaries of Green’s important victory. While Green didn’t get a penny out of the deal, many who filed law suits based on race, color, religion, sex and national origin got their day in court along with the monetary awards from civil settlements.
Last summer, Missouri Governor Eric Greitens signed SB 43 to make the state more attractive to new corporations by making it more difficult to file discrimination suits against employers. The new law immediately threatened the loss of a half billion dollars because it put the state out of compliance with the Fair Housing Assistance Program. Greitens was criticized for not disclosing this little fact during the legislative process. The governor is now dealing with his own mire of personal and political problems.
The forces of evil and greed are so busy throwing curve balls at us, it can be hard to sort through the impact of every despicable deed and its negative impact on us. Then the remedies to the injustices have to be planned out. It’s a lot of hard work involved in building a society free of oppression and exploitation.
At a time when all forms of discrimination are enjoying new popularity under the trump administration, legal eagles and other concerned groups need to convene a summit on the Green case. We need a legal diagnosis to determine which protections should be fortified, which need resuscitation.
Our legal system needs an overhaul on many levels. Thinking about whether there’s still value in Green v. McDonnell Douglas today and beyond is a good place to start.