Two Justices Back Critics of Pretext in Job Discrimination Test

Two US Supreme Court justices recently gave workers an opening to challenge a long-standing requirement for them to show their employer tried to cover up unlawful discrimination in order to reach trial.

Under what’s known as the “pretext” stage of proving workplace bias, employees must offer evidence that an employer’s stated explanation for firing them—or taking some other negative job action—wasn’t the true reason behind the decision.

“That requirement demands more than the text of Title VII,” Justice Clarence Thomas wrote this month in concurrence joined by Justice Neil Gorsuch, referring to the 1964 Civil Rights Act. Their criticism came amid a broader swipe at the three-part evidentiary test the high court established in 1973’s McDonnell Douglas Corp. v. Green.

This argument gives the plaintiff’s bar persuasive reasons to challenge the textual validity of pretext, setting up a future Supreme Court showdown that risks disrupting decades of anti-bias case law foundation to the framework, anti-discrimination law scholars and employment attorneys said.

“The concurrence comprehensively encapsulates a number of critiques,” said Michael Steinberg, a partner at Seyfarth Shaw LLP. “If the court were to reevaluate the propriety of the framework, that would be a seismic shift.”

Inconsistent application of the pretext requirement has created a complex legal landscape over the years, frustrating civil rights advocates, anti-discrimination scholars, and judges alike. It unfairly forces workers to prove their employers’ state of mind, even though the broader McDonnell Douglas test is an alternative evidentiary tool rather than an independent liability standard, they said.

Some plaintiffs’ attorneys acknowledged that removing pretext could allow more cases to proceed to trial. But the moment is ripe for uniformity in what workers truly need to demonstrate to prove their cases are meritorious to survive a pre-trial dismissal on summary judgment grounds, they said.

Rule 56 of the Federal Rules of Civil Procedure, which governs motions for summary judgment, only “requires plaintiffs to show there are genuine questions of fact that could lead a reasonable fact finder to find there was discrimination,” said Leigh Anne St. Charles, a managing partner at Sanford Heisler Sharp McKnight LLC.

“What happens under McDonnell Douglas is courts may hold plaintiffs to a higher standard by showing pretext,” she said.

Mixed Circuit Standards

In cases relying on indirect evidence of discrimination, McDonnell Douglas requires a worker to first establish a prima facie case by showing that they belong to a protected class, are qualified for employment, and faced an adverse action under circumstances suggesting bias.

The employer must then provide a valid, non-discriminatory reason for the action, and the burden shifts to the worker to put forth evidence of pretext.

Federal appeals courts have taken varying approaches to applying McDonnell Douglas when deciding summary judgment, with some developing their own standards for whether a job bias claim is sufficiently strong to proceed to trial.

The US Court of Appeals for the Eleventh Circuit’s “convincing mosaic” standard permits pieces of evidence—like suspicious timing, shifting justification, and patterns of bias—concerning the employer’s discriminatory intent.

The Seventh Circuit previously used this approach before setting precedent that allows cases to proceed to trial if the evidence as a whole supports a reasonable inference that the plaintiff’s protected status caused a challenged job action.

The Second Circuit recently clarified that a plaintiff bringing mixed-motive claims—where their employer asserts both legitimate and unlawful reasons for making a decision—need not show pretext. Evidence that bias played a role is enough to survive summary judgment, it said.

Meanwhile, the Fifth Circuit’s strict “pretext-plus” standard requires proving not only that the employer’s stated reason is false, but also that discrimination was the real motivation.

William Goren, an attorney and consultant specializing in the Americans with Disabilities Act, predicts that more courts will adopt the Eleventh and Seventh circuits’ tests following the Thomas concurrence, as they’re identical in practice and align with Rule 56.

“It is also reasonable to suggest that grants of summary judgments for the defense will go down over time under this new paradigm,” he said.

Disrupting Precedent?

Sandra Sperino, a discrimination law scholar at the University of Missouri, said the second step of the framework is also “in serious tension with” Rule 56.

That step requires courts to make certain inferences based on the employers’ articulated reasons for an adverse action without providing full proof, said Sperino, who has analyzed district and circuit court decisions on the issue for a recent law review article.

Courts are essentially giving significant weight and legal effect to employers’ arguments that are unsupported by the summary judgment rule, she said.

Despite the uneven landscape, the question of how far the Supreme Court should go in creating a more straightforward legal pathway for Title VII cases without disrupting decades of precedent is a head-scratcher for attorneys.

McDonnell Douglas is workable in some instances, depending on the evidence and nature of the claims presented, St. Charles said.

“In theory, the justices could simply clarify that lower courts just need to adhere to the standard under the Federal Rule of Civil Procedure Rule 56 that governs summary judgment.”

With the stage now set for closer judicial scrutiny of the pretext requirement and McDonnell Douglas as a whole, employers are left wondering if they’ll lose a tool they’ve relied on to weed out what they considered weak claims early on.

“It would remove some of the predictability,” Steinberg said. “Courts typically like tests with elements that have to be shown.”