Introduction

AuthorJohn Valery White; Gregory Vincent
PositionJ. Dawson Gasquet Professor, Paul M. Hebert Law Center
Pages487-494

Page 487

J. Dawson Gasquet Professor, Paul M. Hebert Law Center, Louisiana State University. Vice Provost for Academic Affairs and Campus Diversity, Louisiana State University and A& M College and Assistant Professor of Law, Paul M. Hebert Law Center, Louisiana State University.

The following Articles were presented at a symposium on Reeves v. Sanderson Plumbing Prods.Co.1 sponsored by the Louisiana Law Review. Presenting papers at the Lod Cook Alumni Center of Louisiana State University were five of the leading scholars on employment discrimination law: Professor Catherine J. Lanctot2of the Villanova University Law School, Professor Michael Selmi3 of the George Washington Law School, Professor Linda Hamilton Krieger4, University of California at Berkely School of Law, Professor Rebecca Hanner White5 of the University of Georgia Law School, and Professor Michael Zimmer6 of the Seton Page 488 Hall University School of Law.7 Respondents were the authors and Professor George Strickler, Jr.8 of Tulane Law School.

The Supreme Court's June decision in Reeves reinstated a jury verdict for plaintiff Roger Reeves, a supervisor at Sanderson Plumbing who was discharged on the basis of his age after forty years of service. The Fifth Circuit had reversed the District Court's denial of a motion for judgment as a matter of law under Rule 50 of the Federal Rules of Civil Procedure. The Fifth Circuit panel argued that the plaintiff's showing of "pretext"9 along with the evidence he had presented to establish his prima facie case was insufficient to support judgment.10 The Supreme Court's decision that such a showing might be adequate was a strong reaffirmation of a position it had implied seven years earlier in St. Mary's Honor Center v. Hicks11 but which lower courts had not fully embraced.12 Consequently, Reeves has Page 489 been seen as both a strong rebuke of the Fifth Circuit's restrictive requirement of "pretext-plus" and, more generally, a plaintiff-friendly decision13 meant to facilitate the prosecution of employment discrimination cases.

Reeves concerns the "disparate treatment" method for structuring proof of discrimination with circumstantial evidence. "'Disparate treatment'... is the most easily understood type of discrimination. The employer simply treats some people less favorably than others because of their race, color, religion, sex or national origin."14 Or, as in Reeves, a case under the Age Discrimination in Employment Act, treats them differently because of their age. The disparate treatment proof is deceivingly complex and has been the subject of considerable controversy over the last decade. The proof proceeds in three stages: the plaintiff makes a Reeves's case, which the defendant must rebut by producing evidence of a legitimate, nondiscriminatory reason (or face entry of judgement against him), precipitating an opportunity for the plaintiff to respond by showing that the defendant's reasons are Page 490 not the true reasons-that they are "pretext."15 The plaintiff's Reeves's showing is a minimal one, requiring that she dismiss the most likely reasons for the employment decisions (to wit, that the plaintiff did not apply or was unqualified or perhaps that the job was not open).16 The defendant's burden is similarly light. The defendant must only articulate a non-discriminatory reason in the form of admissible evidence and of sufficient quantity to "meet" the plaintiff's prima facie case.17 Predictably most cases quickly develop past these preliminary stages and are fought out over the nature of the plaintiff's pretext showing.

The controversy has concerned the consequences following a plaintiff's showing of pretext. In terms set out by panelist Professor Lanctot in her seminal 1989 article,18 several outcomes are possible. A showing of pretext alone might require a verdict for the plaintiff. Or, such a showing might only allow a verdict for the plaintiff. Finally, "pretext-plus" other evidence established in the record might be required to support a verdict for the plaintiff.19 The first of these options was rejected by the Supreme Court in its important 1993 decision, St. Mary's Honor Center v. Hicks.20 In Hicks the Court held that, because a plaintiff bears the burden of proof throughout the litigation and because any presumption of discrimination created by the prima facie case "falls away" or "bursts" when rebutted, the plaintiff's showing of pretext could have no automatic consequence.21 Rather, the Court implied that such a showing might support a verdict for the plaintiff, but only if its evidentiary weight were sufficient to establish discrimination (the plaintiff's ultimate factual burden).22

Page 491

The Hicks decision proved controversial and ultimately a poor guide for lower courts. It was marked by statements suggesting that the Court believed that the existence of discrimination vel non was proved only when pretext was accompanied with additional evidence-when the plaintiff showed pretext-plus.23 Moreover, the tone of Justice Scalia's opinion for the Court was antagonistic toward and suspicious of claims of discrimination.24 Perhaps predictably, lower courts soon split over the meaning of Hicks.25 In particular, some circuits took the position that Hicks required pretext-plus;26 other circuits accepted that pretext-alone could support a finding of discrimination, but generally required additional evidence to support a verdict for the plaintiff;27 still other circuits, read Hicks for as little as it stood for, and thus allowed plaintiffs to prevail on pretext alone.28

Reeves had established a prima facie case29 which was rebutted.30 He had offered substantial evidence of pretext31 and his case had gone to the jury which ruled for him. After surviving a motion for a judgement as a matter of law, Reeves's judgment was reversed on appeal. The Fifth Circuit held that Reeves's evidence of pretext was insufficient to support the jury verdict in his favor.32 When Page 492 the Supreme Court granted certiorari, the case promised to resolve the ambiguous role of pretext in the poof of discrimination. Some perhaps expected or hoped that the Court would discard the three-step formula altogether.33

The Reeves opinion does resolve the basic controversy generated by Hicks:

[T]he Court of Appeals misconceived the evidentiary burden borne by plaintiffs who attempt to prove intentional discrimination through indirect evidence. This much is evident from our decision in St. Mary's Honor Center.... In [Hicks] we reasoned that it is permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer's explanation.34

Fairly read, the opinion holds that pretext alone might support a verdict of discrimination for a Title VII plaintiff.35 The decision emphatically does not question the propriety of the three-step formula. Quite the contrary, the opinion Page 493 strongly reaffirms the three-step formula, suggesting that the Court believes that approach adequate to structuring circumstantial proofs of discrimination.

Still, the Reeves opinion leaves some questions open. The facts in Reeves involve strong statements of bias by a supervisor against the plaintiff because of his age.36 Although these statements were not sufficiently closely connected to the ultimate decisionmaker to make Reeves a direct poof case, they served as strong evidence of age-bias and prejudice. In this sense the case was easy; Reeves, consequently, raises some doubt about whether the Court's ruling that pretext-alone might support a verdict of discrimination can be extended to cases that lack such statements. Also, Reeves, like the Hicks decision, has language that can be taken as supporting a pretext-plus requirement.37 Together these observations suggest that there might be support in Reeves for a limited requirement of pretext-plus, at least in weak cases.

The anticipation that Reeves would resolve the pretext question and the let- down caused by the factually specific and hedged opinion that emerged, has created a great basis for a symposium. The meaning of Reeves is not so evident that participants would be forced to debate only its propriety. Rather, the long-term value of the opinion is an open question which each of the participants addressed from a different perspective.

Professor Zimmer discussed the case itself and speculated on whether the decision would have any effect on lower courts. While he believes it will Page 494 eventually change lower court practice, his preliminary review of lower court reaction is markedly mixed.

Professor Michael Selmi examined the underlying assumption of both Hicks and lower court opinions applying the pretext-plus approach: the assumption that employment discrimination plaintiffs win discrimination cases at a high rate and that it is quite easy to prevail in such cases. Drawing on the database of federal litigation at Cornell University, Professor Selmi argued that, contrary to this impression, employment discrimination...

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