Justice O'CONNOR, delivered the opinion of the Court with respect to Parts I, II-A, II-B, and III, concluding that disparate impact analysis may be applied to a subjective or discretionary promotion system. Pp.487 U. S. 985-991,487 U. S. 999-1000.
(a) Each of this Court's decisions applying disparate impact analysis -under which facially neutral employment practices, adopted without a deliberately discriminatory motive, may in operation be functionally equivalent to illegal intentional discrimination -involved standardized tests or criteria, such as written aptitude tests or high school diploma requirements, see, e.g., Griggs v. Duke Power Co., 401 U. S. 424, and the Court has consistently used disparate treatment theory, in which proof of intent to discriminate is required, to review hiring or promotion decisions that were based on the exercise of personal judgment or the application of subjective criteria, see, e.g., McDonnell Douglas Corp. v. Green, 411 U. S. 792. Until today, the Court has never addressed the question whether disparate impact analysis may be applied to subjective employment criteria. Pp. 487 U. S. 985 -989.
(b) The reasons supporting the use of disparate impact analysis apply to subjective employment practices. That analysis might effectively be abolished if it were confined to objective, standardized selection practices, since an employer could insulate itself from liability under Griggs and its progeny simply by combining such practices with a subjective component, such as a brief interview, in a system that refrained from making the objective tests absolutely determinative, and could thereby remain free to give those tests almost as much weight as it chose without risking a disparate impact challenge. Moreover, disparate impact analysis is, in principle, no less applicable to subjective employment criteria than to objective or standardized tests, since, in either case, a facially neutral practice, adopted without discriminatory intent, may have effects that are indistinguishable from intentionally discriminatory practices. Simply because no inference of discriminatory intent can be drawn from the customary and reasonable practice in some businesses of leaving promotion decisions to the unchecked discretion of the lower level supervisors most familiar with the jobs and candidates, it does not follow that these supervisors always act without discriminatory intent. Even if it is assumed that discrimination by individual supervisors can be adequately policed through disparate treatment analysis, that analysis would not solve the problem created by subconscious stereotypes and prejudices that lead to conduct prohibited by Title VII. Pp. 487 U. S. 989 -991.
(c) Since neither the District Court nor the Court of Appeals has evaluated the statistical evidence to determine whether petitioner made out a prima facie case of discrimination under disparate impact theory, the case must be remanded. Pp. 487 U. S. 999 -1000.
Justice O'CONNOR, joined by THE CHIEF Justice, Justice WHITE, and Justice SCALIA, concluded in Parts II-C and II-D that:
1. The extension of disparate impact analysis to subjective employment practices could increase the risk that, in order to avoid liability, employers will adopt surreptitious numerical goals and quotas in the belief that, since disparate impact analysis inevitably focuses on statistical evidence, which cannot practically be rebutted by the kind of counterevidence typically used to defend objective criteria, the threat of ruinous litigation requires steps to ensure that no plaintiff can establish a prima facie case under disparate impact theory. That result would be contrary to Congress' clearly expressed intent in 42 U.S.C. § 2000(e)-2(j) that no employer shall be required to grant preferential treatment to any protected individual or group because of a numerical imbalance in its workforce. Pp. 487 U. S. 991 -993.
2. However, the application of disparate impact theory to subjective employment criteria should not have any chilling effect on legitimate business practices, since the high standards of proof applicable in such cases operate to constrain the theory within its proper bounds and provide adequate safeguards against the danger that quotas or preferential treatment will be adopted by employers. Pp. 487 U. S. 993 -999.
(a) In establishing a prima facie case when subjective selection criteria are at issue, the plaintiff may have difficulty satisfying the initial burden of identifying the specific employment practices that are allegedly responsible for any observed statistical disparity, especially where the employer has combined the subjective criteria with more rigid standardized rules or tests. Moreover, the plaintiff's statistical evidence must be sufficiently substantial to prove that the practice in question has caused the exclusion of job or promotion applicants because of their membership in a protected group, and the defendant is free to attack the probative weight of that evidence, to point out fallacies or deficiencies in the plaintiff's data or statistical techniques, and to adduce countervailing evidence of its own. Pp. 487 U. S. 994 -997.
(b) The nature of the "business necessity" or "job-relatedness" defense -under which the defendant has a burden of producing evidence after the plaintiff has made out a prima facie case -also constrains the application of the disparate impact theory. Employers are not required, even when defending standardized or objective tests, to introduce formal "validation studies" showing that particular criteria predict actual on-the-job performance. In the context of subjective or discretionary decisions, the employer will often find it easier than in the case of standardized tests to produce evidence of a "manifest relationship to the employment in question." Many jobs, for example those involving managerial responsibilities, require personal qualities that are not amenable to standardized testing, but are nevertheless job-related. In evaluating claims that discretionary practices are insufficiently related to legitimate business purposes, courts are generally less competent than employers to restructure business practices, and therefore should not attempt to do so. Pp. 487 U. S. 997 -999.
Justice BLACKMUN, joined by Justice BRENNAN and Justice MARSHALL, agreeing that disparate impact analysis may be applied to claims of discrimination caused by subjective or discretionary selection processes, concluded that:
1. In the disparate impact context, a plaintiff who successfully establishes a prima facie case shifts the burden of proof, not production, to the defendant to establish that the employment practice in question is a business necessity. See, e.g., Albemarle Paper Co. v. Moody, 422 U. S. 405, 422 U. S. 425 ; Dothard v. Rawlinson, 433 U. S. 321, 433 U. S. 329 ; and Griggs v. Duke Power Co., 401 U. S. 424, 401 U. S. 432. The plurality's assertion to the contrary mimics the allocation of burdens this Court has established in the very different context of individual disparate treatment claims. Unlike a disparate treatment claim of intentional discrimination, which a prima facie case establishes only by inference, the disparate impact caused by an employment practice is directly established by the numerical disparity shown by the prima facie case, and the employer can avoid liability only if it can prove that the discriminatory effect is justified. To be justified as a business necessity, a practice must directly relate to a prospective employee's ability to perform the job effectively; i.e., it must be necessary to fulfill legitimate business requirements. Pp. 487 U. S. 1000 -1006.
2. The plurality's suggestion that the employer will often find it easier to produce evidence of job-relatedness for a subjective factor than for standardized tests may prove misleading, since the employer still has the obligation to persuade the court of job-relatedness through the introduction of relevant evidence. Pp. 487 U. S. 1006 -1011.
(a) The fact that the formal validation techniques endorsed by the Equal Employment Opportunity Commission's (EEOC) Uniform Guidelines on Employee Selection Procedures cannot always be used to prove the job-relatedness of subjective selection processes does not free an employer from its burden of proof. The link between such processes and job performance may, depending on the type and size of the business and the nature of the particular job, be established by a variety of methods, including the results of studies, expert testimony, and prior successful experience. Although common sense plays a part in the assessment, a reviewing court may not rely on its own, or an employer's, sense of what is "normal" as a substitute for a neutral assessment of the evidence. Pp. 487 U. S. 1006 -1008.
(b) The employer's burden of justifying an employment practice that produces a disparate impact is not lessened simply because the practice relies upon subjective assessments. Establishing a general rule allowing an employer to escape liability simply by articulating vague, inoffensive-sounding subjective criteria would disserve Title VII's goal of eradicating employment discrimination by encouraging employers to abandon attempts to construct neutral selection mechanisms in favor of broad generalities. While subjective criteria will sometimes pose difficult problems for courts charged with assessing job-relatedness, requiring the development of a greater factual record, and, perhaps, the exercise of a greater degree of judgment, that does not dictate that subjective selection processes generally are to be accepted at face value. Pp. 487 U. S. 1008 -1011.
Justice STEVENS, agreeing that the racially adverse impact of an employer's practice of simply committing employment decisions to the unchecked discretion of a white supervisory corps is subject to the test of Griggs v. Duke Power Co., 401 U. S. 424, concluded that, since cases involving such practices will include too many variables to be adequately considered in a general context, further discussion of evidentiary standards should be postponed until after the District Court has made appropriate findings concerning petitioner's prima facie evidence of disparate impact and respondent's explanation for its subjective practice. P. 487 U. S. 1011.
O'CONNOR, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II-A, II-B, and III, in which REHNQUIST, C.J., and BRENNAN, WHITE, MARSHALL, BLACKMUN, and SCALIA, JJ., joined, and an opinion with respect to Parts II-C and II-D in which REHNQUIST, C.J., and WHITE and SCALIA, JJ., joined. BLACKMUN, J., filed an opinion concurring in part and concurring in the judgment, in which BRENNAN and MARSHALL, JJ., joined, post, p. 487 U. S. 1000. STEVENS, J., filed an opinion concurring in the judgment, post, p. 487 U. S. 1011. KENNEDY, J., took no part in the consideration or decision of the case.
No. 86-6139
Argued January 20, 1988
Decided June 29, 1988
487 U.S. 977
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIFTH CIRCUIT
Syllabus
Petitioner employee, who is black, was rejected in favor of white applicants for four promotions to supervisory positions in respondent bank, which had not developed precise and formal selection criteria for the positions, but instead relied on the subjective judgment of white supervisors who were acquainted with the candidates and with the nature of the jobs. After exhausting her administrative remedies, petitioner filed suit in Federal District Court, alleging, inter alia, that respondent's promotion policies had unlawfully discriminated against blacks generally and her personally in violation of Title VII of the Civil Rights Act of 1964. As to petitioner's individual claim, the court held that she had not met her burden of proof under the discriminatory treatment evidentiary standard and, for this and other reasons, dismissed the action. The Court of Appeals affirmed in relevant part, rejecting petitioner's contention that the District Court erred in failing to apply "disparate impact" analysis to her promotion claims. The court held that, under its precedent, a Title VII challenge to a discretionary or subjective promotion system can only be analyzed under the disparate treatment model.
Held: The judgment is vacated, and the case is remanded.
798 F.2d 791, vacated and remanded.
Justice O'CONNOR, delivered the opinion of the Court with respect to Parts I, II-A, II-B, and III, concluding that disparate impact analysis may be applied to a subjective or discretionary promotion system. Pp. 487 U. S. 985 -991, 487 U. S. 999 -1000.
(a) Each of this Court's decisions applying disparate impact analysis -under which facially neutral employment practices, adopted without a deliberately discriminatory motive, may in operation be functionally equivalent to illegal intentional discrimination -involved standardized tests or criteria, such as written aptitude tests or high school diploma requirements, see, e.g., Griggs v. Duke Power Co., 401 U. S. 424, and the Court has consistently used disparate treatment theory, in which proof of intent to discriminate is required, to review hiring or promotion decisions that were based on the exercise of personal judgment or the application of subjective criteria, see, e.g., McDonnell Douglas Corp. v. Green, 411 U. S. 792. Until today, the Court has never addressed the question whether disparate impact analysis may be applied to subjective employment criteria. Pp. 487 U. S. 985 -989.
(b) The reasons supporting the use of disparate impact analysis apply to subjective employment practices. That analysis might effectively be abolished if it were confined to objective, standardized selection practices, since an employer could insulate itself from liability under Griggs and its progeny simply by combining such practices with a subjective component, such as a brief interview, in a system that refrained from making the objective tests absolutely determinative, and could thereby remain free to give those tests almost as much weight as it chose without risking a disparate impact challenge. Moreover, disparate impact analysis is, in principle, no less applicable to subjective employment criteria than to objective or standardized tests, since, in either case, a facially neutral practice, adopted without discriminatory intent, may have effects that are indistinguishable from intentionally discriminatory practices. Simply because no inference of discriminatory intent can be drawn from the customary and reasonable practice in some businesses of leaving promotion decisions to the unchecked discretion of the lower level supervisors most familiar with the jobs and candidates, it does not follow that these supervisors always act without discriminatory intent. Even if it is assumed that discrimination by individual supervisors can be adequately policed through disparate treatment analysis, that analysis would not solve the problem created by subconscious stereotypes and prejudices that lead to conduct prohibited by Title VII. Pp. 487 U. S. 989 -991.
(c) Since neither the District Court nor the Court of Appeals has evaluated the statistical evidence to determine whether petitioner made out a prima facie case of discrimination under disparate impact theory, the case must be remanded. Pp. 487 U. S. 999 -1000.
Justice O'CONNOR, joined by THE CHIEF Justice, Justice WHITE, and Justice SCALIA, concluded in Parts II-C and II-D that:
1. The extension of disparate impact analysis to subjective employment practices could increase the risk that, in order to avoid liability, employers will adopt surreptitious numerical goals and quotas in the belief that, since disparate impact analysis inevitably focuses on statistical evidence, which cannot practically be rebutted by the kind of counterevidence typically used to defend objective criteria, the threat of ruinous litigation requires steps to ensure that no plaintiff can establish a prima facie case under disparate impact theory. That result would be contrary to Congress' clearly expressed intent in 42 U.S.C. § 2000(e)-2(j) that no employer shall be required to grant preferential treatment to any protected individual or group because of a numerical imbalance in its workforce. Pp. 487 U. S. 991 -993.
2. However, the application of disparate impact theory to subjective employment criteria should not have any chilling effect on legitimate business practices, since the high standards of proof applicable in such cases operate to constrain the theory within its proper bounds and provide adequate safeguards against the danger that quotas or preferential treatment will be adopted by employers. Pp. 487 U. S. 993 -999.
(a) In establishing a prima facie case when subjective selection criteria are at issue, the plaintiff may have difficulty satisfying the initial burden of identifying the specific employment practices that are allegedly responsible for any observed statistical disparity, especially where the employer has combined the subjective criteria with more rigid standardized rules or tests. Moreover, the plaintiff's statistical evidence must be sufficiently substantial to prove that the practice in question has caused the exclusion of job or promotion applicants because of their membership in a protected group, and the defendant is free to attack the probative weight of that evidence, to point out fallacies or deficiencies in the plaintiff's data or statistical techniques, and to adduce countervailing evidence of its own. Pp. 487 U. S. 994 -997.
(b) The nature of the "business necessity" or "job-relatedness" defense -under which the defendant has a burden of producing evidence after the plaintiff has made out a prima facie case -also constrains the application of the disparate impact theory. Employers are not required, even when defending standardized or objective tests, to introduce formal "validation studies" showing that particular criteria predict actual on-the-job performance. In the context of subjective or discretionary decisions, the employer will often find it easier than in the case of standardized tests to produce evidence of a "manifest relationship to the employment in question." Many jobs, for example those involving managerial responsibilities, require personal qualities that are not amenable to standardized testing, but are nevertheless job-related. In evaluating claims that discretionary practices are insufficiently related to legitimate business purposes, courts are generally less competent than employers to restructure business practices, and therefore should not attempt to do so. Pp. 487 U. S. 997 -999.
Justice BLACKMUN, joined by Justice BRENNAN and Justice MARSHALL, agreeing that disparate impact analysis may be applied to claims of discrimination caused by subjective or discretionary selection processes, concluded that:
1. In the disparate impact context, a plaintiff who successfully establishes a prima facie case shifts the burden of proof, not production, to the defendant to establish that the employment practice in question is a business necessity. See, e.g., Albemarle Paper Co. v. Moody, 422 U. S. 405, 422 U. S. 425 ; Dothard v. Rawlinson, 433 U. S. 321, 433 U. S. 329 ; and Griggs v. Duke Power Co., 401 U. S. 424, 401 U. S. 432. The plurality's assertion to the contrary mimics the allocation of burdens this Court has established in the very different context of individual disparate treatment claims. Unlike a disparate treatment claim of intentional discrimination, which a prima facie case establishes only by inference, the disparate impact caused by an employment practice is directly established by the numerical disparity shown by the prima facie case, and the employer can avoid liability only if it can prove that the discriminatory effect is justified. To be justified as a business necessity, a practice must directly relate to a prospective employee's ability to perform the job effectively; i.e., it must be necessary to fulfill legitimate business requirements. Pp. 487 U. S. 1000 -1006.
2. The plurality's suggestion that the employer will often find it easier to produce evidence of job-relatedness for a subjective factor than for standardized tests may prove misleading, since the employer still has the obligation to persuade the court of job-relatedness through the introduction of relevant evidence. Pp. 487 U. S. 1006 -1011.
(a) The fact that the formal validation techniques endorsed by the Equal Employment Opportunity Commission's (EEOC) Uniform Guidelines on Employee Selection Procedures cannot always be used to prove the job-relatedness of subjective selection processes does not free an employer from its burden of proof. The link between such processes and job performance may, depending on the type and size of the business and the nature of the particular job, be established by a variety of methods, including the results of studies, expert testimony, and prior successful experience. Although common sense plays a part in the assessment, a reviewing court may not rely on its own, or an employer's, sense of what is "normal" as a substitute for a neutral assessment of the evidence. Pp. 487 U. S. 1006 -1008.
(b) The employer's burden of justifying an employment practice that produces a disparate impact is not lessened simply because the practice relies upon subjective assessments. Establishing a general rule allowing an employer to escape liability simply by articulating vague, inoffensive-sounding subjective criteria would disserve Title VII's goal of eradicating employment discrimination by encouraging employers to abandon attempts to construct neutral selection mechanisms in favor of broad generalities. While subjective criteria will sometimes pose difficult problems for courts charged with assessing job-relatedness, requiring the development of a greater factual record, and, perhaps, the exercise of a greater degree of judgment, that does not dictate that subjective selection processes generally are to be accepted at face value. Pp. 487 U. S. 1008 -1011.
Justice STEVENS, agreeing that the racially adverse impact of an employer's practice of simply committing employment decisions to the unchecked discretion of a white supervisory corps is subject to the test of Griggs v. Duke Power Co., 401 U. S. 424, concluded that, since cases involving such practices will include too many variables to be adequately considered in a general context, further discussion of evidentiary standards should be postponed until after the District Court has made appropriate findings concerning petitioner's prima facie evidence of disparate impact and respondent's explanation for its subjective practice. P. 487 U. S. 1011.
O'CONNOR, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II-A, II-B, and III, in which REHNQUIST, C.J., and BRENNAN, WHITE, MARSHALL, BLACKMUN, and SCALIA, JJ., joined, and an opinion with respect to Parts II-C and II-D in which REHNQUIST, C.J., and WHITE and SCALIA, JJ., joined. BLACKMUN, J., filed an opinion concurring in part and concurring in the judgment, in which BRENNAN and MARSHALL, JJ., joined, post, p. 487 U. S. 1000. STEVENS, J., filed an opinion concurring in the judgment, post, p. 487 U. S. 1011. KENNEDY, J., took no part in the consideration or decision of the case.
JUSTICE O'CONNOR announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II-A, II-B, and III, and an opinion with respect to parts II-C and II-D, in which THE CHIEF JUSTICE, JUSTICE WHITE, and JUSTICE SCALIA join.
This case requires us to decide what evidentiary standards should be applied under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U.S.C. § 2000e et seq., in determining whether an employer's practice of committing promotion decisions to the subjective discretion of supervisory employees has led to illegal discrimination.
I
Petitioner Clara Watson, who is black, was hired by respondent Fort Worth Bank and Trust (the Bank) as a proof operator in August, 1973. In January, 1976, Watson was promoted to a position as teller in the Bank's drive-in facility. In February, 1980, she sought to become supervisor of the tellers in the main lobby; a white male, however, was selected for this job. Watson then sought a position as supervisor of the drive-in bank, but this position was given to a white female. In February, 1981, after Watson had served for about a year as a commercial teller in the Bank's main lobby, and informally as assistant to the supervisor of tellers, the man holding that position was promoted. Watson applied for the vacancy, but the white female who was the supervisor of the drive-in bank was selected instead. Watson then applied for the vacancy created at the drive-in; a white male was selected for that job. The Bank, which has about 80 employees, had not developed precise and formal criteria for evaluating candidates for the positions for which Watson unsuccessfully applied. It relied instead on the subjective judgment of supervisors who were acquainted with the candidates, and with the nature of the jobs to be filled. All the supervisors involved in denying Watson the four promotions at issue were white.
Watson filed a discrimination charge with the Equal Employment Opportunity Commission (EEOC). After exhausting her administrative remedies, she filed this lawsuit in the United States District Court for the Northern District of Texas. She alleged that the Bank had unlawfully discriminated against blacks in hiring, compensation, initial placement, promotions, terminations, and other terms and conditions of employment. On Watson's motion under Federal Rule of Civil Procedure 23, the District Court certified a class consisting of
blacks who applied to or were employed by [respondent] on or after October 21, 1979, or who may submit employment applications to [respondent] in the future.
App.190. The District Court later decertified this broad class because it concluded, in light of the evidence presented at trial, that there was not a common question of law or fact uniting the groups of applicants and employees. After splitting the class along this line, the court found that the class of black employees did not meet the numerosity requirement of Rule 23(a); accordingly, this subclass was decertified. The court also concluded that Watson was not an adequate representative of the applicant class, because her promotion claims were not typical of the claims of the members of that group. Because Watson had proceeded zealously on behalf of the job applicants, however, the court went on to address the merits of their claims. It concluded that Watson had failed to establish a prima facie case of racial discrimination in hiring: the percentage of blacks in the Bank's workforce approximated the percentage of blacks in the metropolitan area where the Bank is located. App.199-202.
The District Court addressed Watson's individual claims under the evidentiary standards that apply in a discriminatory treatment case. See McDonnell Douglas Corp. v. Green, 411 U. S. 792 (1973), and Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248 (1981). It concluded, on the evidence presented at trial, that Watson had established a prima facie case of employment discrimination, but that the Bank had met its rebuttal burden by presenting legitimate and nondiscriminatory reasons for each of the challenged promotion decisions. The court also concluded that Watson had failed to show that these reasons were pretexts for racial discrimination. Accordingly, the action was dismissed. App.195-197, 203.
A divided panel of the United States Court of Appeals for the Fifth Circuit affirmed in part. 798 F.2d 791 (1986). The majority concluded that there was no abuse of discretion in the District Court's class decertification decisions. In order to avoid unfair prejudice to members of the class of black job applicants, however, the Court of Appeals vacated the portion of the judgment affecting them and remanded with instructions to dismiss those claims without prejudice. The majority affirmed the District Court's conclusion that Watson had failed to prove her claim of racial discrimination under the standards set out in McDonnell Douglas, supra, and Burdine, supra. [ Footnote 1 ]
Watson argued that the District Court had erred in failing to apply "disparate impact" analysis to her claims of discrimination in promotion. Relying on Fifth Circuit precedent, the majority of the Court of Appeals panel held that
a Title VII challenge to an allegedly discretionary promotion system is properly analyzed under the disparate treatment model, rather than the disparate impact model.
798 F.2d at 797. Other Courts of Appeals have held that disparate impact analysis may be applied to hiring or promotion systems that involve the use of "discretionary" or "subjective" criteria. See, e.g., Atonio v. Wards Cove Packing Co., 810 F.2d 1477 (CA9) (en banc), on return to panel, 827 F.2d 439 (1987), cert denied, No. 87-1388, 485 U.S. 989 (1988), cert. pending, No. 87-1387; Griffin v. Carlin, 755 F.2d 1516, 1522-1525 (CA11 1985). Cf. Segar v. Smith, 238 U.S.App.D.C. 103, 738 F.2d 1249 (1984), cert. denied, 471 U.S. 1115 (1985). We granted certiorari to resolve the conflict. 483 U.S. 1004 (1987).
II
A
Section 703 of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, provides:
(a) It shall be an unlawful employment practice for an employer –
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin. * * * *
(h) Notwithstanding any other provision of this subchapter, it shall not be an unlawful employment practice for an employer… to give and to act upon the results of any professionally developed ability test provided that such test, its administration or action upon the results is not designed, intended or used to discriminate because of race, color, religion, sex or national origin….
Several of our decisions have dealt with the evidentiary standards that apply when an individual alleges that an employer has treated that particular person less favorably than others because of the plaintiff's race, color, religion, sex, or national origin. In such "disparate treatment" cases, which involve "the most easily understood type of discrimination," Teamsters v. United States, 431 U. S. 324, 431 U. S. 335, n. 15 (1977), the plaintiff is required to prove that the defendant had a discriminatory intent or motive. In order to facilitate the orderly consideration of relevant evidence, we have devised a series of shifting evidentiary burdens that are "intended progressively to sharpen the inquiry into the elusive factual question of intentional discrimination." Texas Dept. of Community Affairs v. Burdine, 450 U.S. at 450 U. S. 255, n. 8. Under that scheme, a prima facie case is ordinarily established by proof that the employer, after having rejected the plaintiff's application for a job or promotion, continued to seek applica