dissenting.
I would affirm. In my view, the trial court’s findings of fact of no illegal discrimination are not clearly erroneous under either state or federal standards. The federal framework for the adjudication of claims of sex discrimination is by no means settled. It is apparent that the majority is intent upon applying federal Title VII analysis to the case at bar and, in my opinion, parts of the analysis contained in the majority are either unclear or erroneous statements of federal law.
To prove a violation of Title VII of the Civil Rights Act of 1964, the plaintiff may proceed under either the “disparate treatment” theory of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), or the “disparate impact” theory of Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). Claims of disparate treatment are distinguishable from claims of disparate impact:
“The latter involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity. . . . Proof of discriminatory motive, we have held, is not required under a disparate impact theory.” Int’l Brd. of Teamsters v. United States, 431 U.S. 324, 335 n. 15, 97 S.Ct. 1843, 1854 n. 15, 52 L.Ed.2d 396 (1977).
I am in accord with the majority’s analysis of plaintiff’s claim under the disparate impact theory.
“Disparate treatment” is the most readily understood type of discrimination.
“The employer simply treats some people less favorably than others because of their race, color, religion, sex, or national origin. Proof of discriminatory motive is critical, although it can in some situations be inferred from the mere fact of differ*820enees in treatment.” Int’l Brd. of Teamsters v. United States, supra, at 335 n. 15, 97 S.Ct. at 1854 n. 15.
Thus, contrary to the majority, it is necessary for Donna Bowles to show that the defendants intended to discriminate against her on the basis of sex. See also Furnco Constr. Corp. v. Waters, 438 U.S. 567, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978); Sweeney v. Bd. of Trustees of Keene State College, 569 F.2d 169 (1st Cir. 1978), rev’d on other grounds, 439 U.S. 24, 99 S.Ct. 295, 58 L.Ed.2d 216 (1978); Presseisen v. Swarthmore College, 442 F.Supp. 593 (E.D.Pa. 1977). In recognition of the difficulty of proving intent, however, the United States Supreme Court has established a method by which a plaintiff may generate an inference of discrimination upon the showing of certain facts. McDonnell Douglas Corp. v. Green, supra. The four elements needed for a plaintiff to make out a prima facie case are as set forth in the majority opinion. Once the four McDonnell Douglas factors are met, an inference of discriminatory motive is raised. Chavez v. Tempe Union High School Dist. No. 213, 565 F.2d 1087 (9th Cir. 1977).
If the plaintiff carries the initial burden and establishes a prima facie case, the “burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason for the employee’s rejection.” McDonnell Douglas Corp. v. Green, supra 411 U.S. at 802, 93 S.Ct. at 1824. See also Furnco Constr. Corp. v. Waters, supra. The burden which shifts is not, as the majority suggests, the burden of persuasion but, rather, the burden of going forward with the evidence. The ultimate burden of persuasion on the issue of discrimination remains with the plaintiff, who must convince the court by a preponderance of the evidence that she has been the victim of discrimination. Bd. of Trustees of Keene State College v. Sweeney, 439 U.S. 24, 99 S.Ct. 295, 58 L.Ed.2d 216 (1978) (Stevens, J., dissenting); Sweeney v. Bd. of Trustees of Keene State College, 569 F.2d 169 (1st Cir. 1978); Croker v. Boeing Co., 437 F.Supp. 1138 (E.D.Pa. 1977). If the employer articulates a reason for rejection sufficient to rebut the plaintiff’s prima facie case, the trial enters a third phase not treated in the majority opinion. At this point, the plaintiff is to be “afforded a fair opportunity to show that petitioner’s [the employer’s] stated reason for respondent’s [the employee’s] rejection was in fact pretext.” McDonnell Douglas Corp. v. Green, supra 411 U.S. at 804, 93 S.Ct. at 1825. See also Furnco Constr. Corp. v. Waters, supra.
The majority correctly concludes that Mrs. Bowles established a prima facie case of discrimination under the McDonnell Douglas disparate treatment criteria. I agree that the proper focus in this case is thus upon the defendant’s ability to rebut this prima facie case. I do not agree, however, that the defendants failed to rebut the prima facie case.
In reaching its conclusion that the defendants failed to rebut plaintiff’s prima facie case, the majority appears to be adopting a new standard of proof to apply to such factual situations. Under federal pattern and practice, an employer need only “articulate some legitimate, nondiscriminatory reason for the employee’s rejection.” McDonnell Douglas Corp. v. Green, supra at 802, 93 S.Ct. at 1824. The majority is now placing upon the Idaho employer who uses subjective hiring practices the additional burden of producing “credible evidence to show that the reasons advanced were in fact the real reasons.” (Emphasis added.) We are not told what “real” reasons are, and how one goes about distinguishing them from some other kind. There are at least two possible ways to read this new standard. The majority may wish to emphasis that the employer must do something more than merely “state” his reasons. Under Furnco and McDonnell Douglas “the employer’s burden is satisfied if he simply ‘explains what he has done’ or ‘produces] evidence of legitimate nondiscriminatory reasons.’ ” Bd. of Trustees of Keene State College v. Sweeney, supra. It has never been the law that the employer may rebut a prima facie case by merely stating a reason which has no support in the evidence.
*821Another, and more logical, way to read the majority’s new standard is as an imposition upon the employer to prove his “real” reason to the exclusion of all other reasons — including those of a discriminatory nature. If this be the case, a defendant employer in Idaho will be saddled with a burden more onerous than he would bear in federal court. In Bd. of Trustees of Keene State College v. Sweeney, supra, the Court dealt with that very issue and reversed a Court of Appeals decision which required the defendant employer to prove an absence of discriminatory motive because that party had greater access to such evidence. The Court noted that in Furnco and McDonnell Douglas it was stated that an employer may dispel the adverse inference from a prima facie case by simply articulating some legitimate, nondiscriminatory reason for the employee’s rejection. The Court then declared that “there is a significant-distinction between merely ‘articulat[ing] some legitimate, nondiscriminatory reason,’ and ‘prov[ing] absence of discriminatory motive’. . . . [T]he former will suffice to meet the employee’s prima facie case of discrimination.” 99 S.Ct. at 295. The Court also noted that placing the burden of proving the absence of a discriminatory motive on the employer,
“would make entirely superfluous the third step in the Furnco — McDonnell Douglas analysis, since it would place on the employer at the second stage the burden of showing that the reason for rejection was not a pretext, rather than requiring such proof from the employee as part of the third step.” 99 S.Ct. at 295 n. 1.
If this Court wishes, as it states, to follow federal law, then the proper question before us is simply whether the defendants articulated or established that there was a legitimate, nondiscriminatory reason for not hiring Mrs. Bowles. There is no justification or basis in the case law for imposing upon the defendants the obligation to prove that this was the “real” reason to the exclusion of others. To impose that additional proof burden on defendants, the majority ostensibly uses the fact that the school district used subjective hiring procedures. It must be noted in this regard that the employer in McDonnell Douglas also used a subjective criterion for refusing to hire the plaintiff therein. Although the Court of Appeals had said that the subjective reason would carry little weight in rebutting charges of discrimination, the Supreme Court said that it would suffice to meet the prima facie case. McDonnell Douglas Corp. v. Green, supra, 411 U.S. at 804, 93 S.Ct. 1817. At this point, then, the sole question is whether the defendants articulated or established a legitimate, nondiscriminatory reason for not hiring Mrs. Bowles.
The district court, based upon the evidence adduced at trial, expressly found that plaintiff was not hired “because of her apparent lack of administrative ability and her failure to relate well to others.” He, therefore, concluded as a matter of law that “there were justifiable reasons for the defendant school district not to hire the plaintiff.” This Court can overturn the judge’s decision only by ruling that it was “clearly erroneous.” I.R.C.P. 52(a). This same standard is applicable to judge-tried discrimination cases in federal court. E. g., Garrett v. Mobil Oil Corp., 531 F.2d 892 (8th Cir. 1976); Causey v. Ford Motor Co., 516 F.2d 416 (5th Cir. 1975).
On appeal it is axiomatic that the record, the evidence, and the inferences arising therefrom are to be viewed most favorably to the respondent and in support of the findings of the trial court. Matter of Estate of Webber, 97 Idaho 703, 551 P.2d 1339 (1976). As to appellant’s experience in administration, the testimony indicates that aside from formal education she had worked approximately seven years as a teacher of business subjects such as shorthand, typing, and business law in three different high schools. In two of them, she taught under the supervision of her husband, who was the high school principal. Two of those schools numbered approximately 150 students as contrasted with approximately 600 in Moscow high school. For two years in the winter season she taught adult education classes in shorthand *822and typing under the supervision of one Andruiza. She had made application for a teaching position at Moscow high school and later for a position in administration at the University of Idaho and was not hired for either position. During 1973 and 1974, she made application for positions as Moscow junior high school vice-principal, Moscow high school vice-principal, and Moscow high school principal. She was not hired for any of these positions. Since 1973, she has worked as legal secretary for her husband.
As stated in the majority opinion, appellant was interviewed by defendant Keating and Swartz, who was then the principal at Moscow high school. Both testified that they felt Bowles lacked direct experience in the supervision over the teachers; that her experience in smaller schools would handicap her in dealing administratively with computerized scheduling and grading in a large school such as Moscow; that she had little experience in working with discipline problems; and when they checked with former supervisors of Bowles, it was reported that she had difficulty in relating to others in the area of human relation skills. That testimony was supported by the testimony of one Andruiza, a former supervisor of Bowles.
It is true, as asserted by the majority opinion, that subjective and unstructured standards were utilized in evaluating appellant’s application. However, it is also true that decisions of hiring or promotion in upper level jobs may necessarily involve such abstractions and intangibles as leadership, personality, ability to relate to others, and supervisory ability, which are difficult, if not impossible, to realistically measure by objective techniques alone. See Rogers v. Int’l Paper Co., 510 F.2d 1340 (8th Cir. 1975), vacated and remanded on another issue, 423 U.S. 809, 96 S.Ct. 19, 46 L.Ed.2d 29 (1975), opinion on remand, 526 F.2d 722 (8th Cir. 1975), Note, Title VII and Employment Discrimination in “Upper Level” Jobs, 73 Colum.L.Rev. 1614 (1973). Subjective hiring procedures are not per se violative of Title VII, Rogers v. Int’l Paper Co., supra; Hester v. Southern Railroad Co., 497 F.2d 1374 (5th Cir. 1974).
In my judgment, the record here supports the finding of the trial court “that the plaintiff was not hired by the defendant, Moscow School District, as the high school vice-principal because of her apparent lack of administrative ability and her failure to relate well to others.” Thus, evidence was adduced to show a legitimate nondiscriminatory reason. Thereafter, appellant had full opportunity to produce evidence to show that defendant’s refusal to hire was, in fact, sexually premised. This she did not do. I would hold that since the trial court’s ruling was not clearly erroneous, we are bound to accept it. I.R.C.P. 52(a).
In my judgment, the majority opinion ignores the record which clearly supports the ruling of the trial court and appears to be influenced by two additional factors. The first appears to be that the trial court did not expressly recognize that appellant had established a prima facie case of sex discrimination. If the trial court had dismissed plaintiff’s case at the end of her case in chief or ended his analysis with the simple conclusion that she had not met her burden of establishing a prima facie case, I, too, would vote for a reversal. However, the purportedly erroneous statement of the trial judge contained in the majority opinion occurred at the conclusion of the entire trial, and since the trial court at that time had heard evidence of legitimate reasons for the refusal to hire, I would hold that he was correct in suggesting at that point the necessity of tendering evidence showing that the hiring decision was sexually premised. Appellant was not halted at the “threshold.” Federal courts have held that any error in classifying plaintiff’s proof as insufficient to create a prima facie case is harmless error. See, e. g., Smith v. Liberty Mut. Ins. Co., 569 F.2d 325 (5th Cir. 1978); Peters v. Jefferson Chem. Co., 516 F.2d 447 (5th Cir. 1975).
The second factor which I view as influencing the majority opinion is the trial court’s conclusion “that all nine of the applicants for the job of high school vice-principal were discriminated against, but said *823discrimination was not based on sex, and said discrimination was not illegal.” That conclusion is probably substantiated in the record as a desire on behalf of the defendants-respondents to hire a current employee of the school district, or an “insider.” The majority opinion finds that appellant “had a more significant administrative background than the person who was hired.” I would disagree with that finding of the majority. I would view the record otherwise and only note that the trial court made no such finding. The record sustains, and I would uphold, the finding of the trial court that the appellant was not the most qualified of the nine applicants for the job regardless of what her qualifications might be when compared to those of the “insider.” The conclusion to be drawn from this is that a male who was the most qualified of the applicants, as well as Mrs. Bowles, appear to have been discriminated against in favor of an “insider” who also happened to be a male. While such may be offensive to our abstract notions of fair play, I would hold that the trial judge was correct in ruling that it was not an illegal form of discrimination. Discrimination is not unlawful unless the form of discrimination is constitutionally or statutorily forbidden. B. Schlei & P. Grossman, Employment Discrimination Law 15 (1976). A practice of “cronyism” or “insider” hiring may, in some instances, be facially neutral, but also have a discriminatory impact. See Local 53 of Int’l Ass’n of Heat and Frost Insulators and Asbestos Workers v. Vogler, 407 F.2d 1047 (5th Cir. 1969); Lee v. City of Richmond, 456 F.Supp. 756 (E.D.Va. 1978). However, I find no such evidence of discriminatory impact in the case at bar.
I would affirm the decision of the lower court.
BAKES, J., concurs.