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January 14, 2005
One non-pretextual reason is enough
In Dept of Transportation v. Commn on Human Rights [full text pdf] (Connecticut 01/11/2005) an employee filed a complaint with the State's Commission on Human Rights and Opportunities, alleging race and national origin discrimination (failure to promote). The Commission found that the employer's two proffered legitimate non-discriminatory reasons were pretextual. The employer appealed to the trial court, which found that one of the employer's proffered reasons (the employee's failure to obtain a professional engineer's license) justified the employer's failure to promote. The trial court therefore rejected one of the Commission's two findings of pretext but sustained the other. The Connecticut Supreme Court reversed. Because the employee's failure to obtain a license was a non-pretextual legitimate non-discriminatory reason for the employer's decision not to promote the employee, the employer was entitled to judgment s a matter of law. The court agreed, and reversed.
The trial court relied on Russell v. Acme-Evans Co., 51 F.3d 64 (7th Cir 1995), which stated "[t]here may be cases in which the multiple grounds offered by the [employer] for the adverse action of which the [complainant] complains are so intertwined, or the pretextual character of one of them so fishy and suspicious, that the [complainant] could [prevail]." The Supreme Court concluded that Russell was inapposite, however, since the employee's failure to obtain an engineering license was an "absolute bar to his promotion, and, therefore, served as an independent, nonpretextual reason for the department's decision not to promote him .... There is no likelihood of any interrelationship between any pretextual and nonpretextual reasons for the department's adverse employment decision."
This case is correct. And obviously so. Then why mention it in a blog? Well, there just happens to be a bit of confusion about how this works. Everyone can recite the formula from McDonnell Douglas: First the plaintiff-employee sets out a prima facie case (and here we'll omit the details), and that shifts the burden of production to the defendant-employer to show that it had a legitimate, non-discriminatory reason for its action. If both take place, then the burden (of production and persuasion) shifts back to the employee to show that the articulated reason was actually a pretext for race discrimination.
A bit of confusion arises when the employer has demonstrated two or more reasons. Does the plaintiff have to knock them all down? Usually the answer is yes. This is because if the employer has shown one non-pretextual reason for its action, then the employer has shown that it had a legitimate reason. Plaintiffs should demand that the employer demonstrate that the same decision would have been made in any event. See Desert Palace v. Costa [full text] (US Supreme Court 06/09/2003). That might be a bit harder for the employer to prove.
Posted January 14, 2005 by Ross Runkel, Editor at LawMemo, publisher of Employment Law Memo. Try it.
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