The Pretext Burden After St. Mary's Honor Center v. Hicks

• Publication year: 1995
• Pages: 2349

24 Colo.Law. 2349 Colorado Lawyer 1995.

1995, October, Pg. 2349. The Pretext Burden After St. Mary's Honor Center v. Hicks

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2349

Vol. 24, No. 10, Pg. 2349

The Pretext Burden After St. Mary's Honor Center v. Hicks

by Daniel Grossman

It is a well-established principle of the law of employment discrimination that plaintiffs may prove their disparate treatment case either by offering direct evidence of intentional discrimination or by using the indirect method of proof. There is no mystery as to establishing a discrimination claim by use of the direct method. However, the continuing evolution of the case law regarding the indirect method has created a quagmire of confusion in which lawyers and judges have found themselves wallowing

This article discusses the foundations of the indirect method of proof and the implications of a recent U.S. Supreme Court case on this issue.

The Foundation

In two separate cases (one in 1973 and one in 1981), the U.S. Supreme Court established the indirect method of proof, which has become the foundation of most employment discrimination cases. The opinions in the two cases, McDonnell Douglas v. Green(fn1) and Texas Department of Community Affairs v. Burdine,(fn2) were merged in the subsequent case law and constitute the foundation of the McDonnell Douglas/Burdine test for the indirect method of proof of disparate treatment employment discrimination claims.

Under the test, plaintiffs in Title VII cases (as well as cases arising under the Age Discrimination in Employment Act(fn3)) must establish a prima facie case of discrimination that raises an inference of discriminatory intent.(fn4) The employer must then come forward with a legitimate, nondiscriminatory reason for the adverse employment action.(fn5) The final tier of the McDonnell Douglas/Burdine test requires plaintiffs to prove that the legitimate reasons offered by the employer were merely a pretext for discrimination.(fn6)

Lawyers and judges have had little problem determining exactly how to interpret the prima facie case requirement. The Supreme Court's guidance on this issue has been sufficient. The inference of discriminatory intent arises once the plaintiff establishes: (1) membership in a protected racial, religious, gender, national origin or age class; (2) sufficient qualifications required for the position; (3) adverse employment action; and (4) that the employer continued to accept applications or the plaintiff's job was filled by an unprotected individual.(fn7) The precise test varies slightly with the specific type of adverse employment action complained of by the plaintiff.(fn8)

Similarly, there has been little confusion as to the defendant's burden in coming forward with a legitimate, nondiscriminatory reason for the adverse employment action. The Tenth Circuit explained the employer's burden of production in detail in EEOC v. Flasher Co.,(fn9) in which the court held that the defendant's burden is merely to articulate a facially nondiscriminatory reason for the adverse employment action. The defendant does not at this stage of the McDonnell Douglas/Burdine test need to litigate the merits of the reasoning, nor does it need to prove that the reason relied on was bona fide, or that the reasoning was applied in a nondiscriminatory manner. The proffered reason need only be reasonably specific and clear.(fn10)

However, the failure of the courts to articulate clearly and unambiguously the specific burdens in proving pretext has created much confusion among lawyers and judges.(fn11) Some courts have insisted that merely...