FERGUSON, Circuit Judge:
Muntin, an experienced deckhand, was the first woman ever to apply for a position as deckhand at Historic Ships Park in San Francisco. She placed third out of 60 applicants on the qualifying exam. The California Department of Parks and Recreation departed from its 18-year practice of interviewing the top three competitors on the exam, and refused to interview her for deckhand vacancies. The testimony and deposition of the person responsible for hiring decisions show a clear discriminatory animus against the hiring of women as deckhands. In this resulting Title VII action, the trial court held that the employer's actions "were not based on any intent or design to discriminate against plaintiff because of her sex." We reverse.
I. Intent to Discriminate
Title VII provides in pertinent part that:
42 U.S.C. § 2000e-2. As explained by the Supreme Court in Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-56, 101 S.Ct. 1089, 1093-95, 67 L.Ed.2d 207 (1981), the burden of proof is on the plaintiff to prove discrimination in an action brought under this section. In the typical case, the plaintiff begins by making out a prima facie case of discrimination. To do so, she must simply establish, 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." Burdine, supra, at 253, 101 S.Ct. at 1093. By doing this, the plaintiff raises a rebuttable presumption of discrimination, and unless the defendant comes forward with evidence "legally sufficient to justify a judgment," in its favor, id. at 255, 101 S.Ct. at 1094, the plaintiff has met her burden of proof and is entitled to judgment in her favor. Id. at 254, 101 S.Ct. at 1094. If the defendant meets its burden of production by coming forward with an explanation of its action, the presumption "drops from the case," id. at 255 n.10, 101 S.Ct. at 1095 n.10, and the plaintiff must
Not every successful case will conform to this pattern, however. The employer may decline to offer evidence to rebut the presumption arising from the prima facie case. Or, the evidence used by the plaintiff in the first place to establish her prima facie case may suffice to convince the trier of fact that the explanation offered by the employer is pretextual. As the Supreme Court noted,
Id. at 255 n.10, 101 S.Ct. at 1095 n.10. Indeed, the evidence used to establish the prima facie case may be so conclusive as to establish, as a matter of law, the fact of discriminatory intent. In such a case the defendant will be unable to meet its burden of coming forward with a legally sufficient explanation.
In the present case, the hiring officer's trial and deposition testimony included the following:
R.T. 194-95. We are of the opinion that this testimony, as a matter of law, demonstrates a discriminatory animus — a disposition not to hire women as deckhands regardless of their ability to perform the job. Together with the Department's departure from its long-standing practice of interviewing
Under Title VII, the question of appropriate remedy is distinct from the question whether there was intentional discrimination. For instance, the law does not contemplate an award of backpay to a plaintiff who, though qualified, would not have been hired or promoted even in the absence of the proven discrimination. Thus, the Department's explanations for not interviewing or hiring Muntin are relevant on the issue of appropriate remedy, even though they cannot rebut the proof of discrimination. However, in this context we cannot rely on the trial court's judgment that the employer's explanations were sufficient. The trial court may have improperly allocated the burden of proof to the plaintiff. On the issue of an appropriate remedy, that burden rests with the defendant. If the defendant meets that burden, establishing by clear and convincing evidence that the plaintiff would not have been hired even absent the illegal discrimination, then retroactive appointment or promotion, and back pay, would not be among the available remedies.
Thus, in League of United Latin American Citizens v. City of Salinas Fire Dep't, 654 F.2d 557 (9th Cir. 1981), we observed that:
Id. at 558-59 (citations omitted). On remand, the trial court will therefore have to determine whether the Department's asserted explanations for not hiring Muntin provide "clear and convincing evidence" that she would not have been hired even in the absence of the proven discrimination.
The judgment appealed from is REVERSED, and the cause is REMANDED for proceedings not inconsistent with this opinion.