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« Employer's rebuttal #17 | Main | BFOQ #19 »

Pretext #18
by Ross Runkel at LawMemo

A typical disparate treatment employment discrimination case will go through two procedural steps.

  • Step one - Summary Judgment. After the employee files a complaint and the employer files an answer and there has been some discovery (such as depositions), the employer usually files a motion for summary judgment. The judge must decide whether there is enough evidence to justify sending the case to a jury.
  • Step two - Trial. At a trial (either by a jury or by the judge without a jury), the judge or jury will decide who wins.

Here's the thought process for a judge who is deciding a motion for summary judgment: whether there is sufficient evidence of illegal discrimination to justify a trial.

Let's assume Jane applied for a job and didn't get hired.

  • Employee's prima facie case: Jane shows that she is female, applied for a job that was open, has the basic qualifications, was not hired, and a male got the job. (That's our example. Every case is a little different.)

    This prima facie case creates an inference that Jane was not hired because of sex. The employer better rebut that case.

  • Employer's rebuttal: The employer produces evidence of a legitimate non-discriminatory reason for not hiring Jane. (Such as: someone else was more qualified; Jane has a criminal record.) At the summary judgment stage, the employer doesn't have to prove this reason is true, but does have to produce some evidence.

    This rebuttal destroys the inference, so we're back to square one. Jane better do something, and what she better do is show pretext.

  • Pretext: Jane will provide evidence that the non-discriminatory reason relied on by the employer is really a pretext for sex discrimination. Jane has to show that there is at least a factual dispute as to what the real reason was. Usually she needs to have proof that the employer's reason was manufactured, or the employer shifted from one reason to another, or something else to indicate that the employer's reason is false (that is, it's a pretext).

    If Jane can provide evidence of pretext, she should be able to move to Step Two - the Trial.

At the trial everything comes down to the question of what was the reason Jane was not hired. If the jury decides the reason was sex, then Jane wins. If the jury decides it was some other reason, then Jane loses. Note that Jane has to convince the jury that the reason was sex. It's not enough just to prove that the employer's reason was not true.

One more twist: Dual motive.

Sometimes there is evidence that the employer had two motives operating at the same time. One illegal one (sex), and one legal one (Jane has a flat personality). Now the employer will try to prove that the same decision would have been made even without the illegal motive. Under Title VII, Jane won't get any money damages, but she can get declaratory relief and attorney fees. Under some statutes, Jane simply loses.

Coming next: BFOQ #19: Employment Law 101


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