AuthorHudson, Erica

CONTENTS INTRODUCTION I. WHEN DO COURTS INQUIRE INTO PRETEXT? A. Mandated by Statute B. Not Mandated by Statute 1. Employment Discrimination 2. Batson Claims 3. Administrative Law II. WHAT DOES A FINDING OF PRETEXT LOOK LIKE? A. Employment Discrimination 1. Statistical Evidence 2. General Biases 3. Disparate Treatment 4. Departing from Company Policy or Usual Procedure 5. Other Factors B. Batson Claims III. DIFFERENCES IN HOW COURTS TREAT PRETEXT--ARE THOSE DIFFERENCES MERITED? A. Purpose B. Pretext as Determinative of a Case 1. Title VII and Batson Claims--Pretext v. "Pretext-Plus" 2. Administrative Claims--Which Standard of Proof? a. Motion for Extra-Record Discovery b. Remand CONCLUSION INTRODUCTION

The idea of pretext came into the ambit of the judiciary early in American history. In McCulloch v. Maryland, (1) Chief Justice Marshall famously warned against the danger of "Congress, under the pretext of executing its powers, pass[ing] laws for the accomplishment of objects not entrusted to the government." (2) Today, courts continue to grapple with how to confront pretextual explanations for decisions at issue in litigation. Courts have developed doctrines that guide inquiries into pretext in some contexts, specifically in the context of employment-discrimination (3) and discriminatory peremptory-challenge claims. (4) And some laws prescribe inquiries into pretext, such as fraud and money-laundering statutes. (5) However, outside of these discreet categories of claims, courts face confusion about when to inquire into pretext and what pretext even looks like. The Supreme Court's decision in Department of Commerce v. New York (6) brought the question of pretext into administrative law, throwing a wrench in an arena normally characterized by deferential, low standards of review. (7)

This Comment examines the different forms and functions of pretext across several areas of law and analyzes whether those differences make sense. Evidence of pretext in Title VII and Batson claims may look similar: proof of disparate treatment, statistics, and anecdotes all serve to establish pretext in these areas; (8) while a paper trail of the decision-making process supports a finding of pretext in the administrative context. (9) The purpose of pretext inquiries in each of these areas differs too--while Title VII claims and Batson claims seek to uncover illegal discrimination, (10) administrative pretext claims serve as a method of political accountability. (11) Beyond the different purposes of pretext across these areas of law, pretext is also subject to varying standards of proof, affecting the extent to which pretext is determinative of the outcome of a case. (12)

While some of these differences comport with the purpose of pretext inquiries in each area, others could be updated to better reflect the purpose that inquiring into pretext serves. Part I of this Comment examines when courts inquire into pretext. Part II discusses what a finding of pretext looks like in Title VII, Batson, and administrative law cases. Part III analyzes the purpose of pretext inquiries in each of these areas and evaluates whether the differences in how pretext is treated are merited given its purpose in each area of law.


    Courts consistently inquire into pretext in two instances: (1) when a statute mandates that the court look into pretext behind a decision or law, and (2) when a statute makes no such mandate, but the circumstances create a situation where a decision-maker is able to "cover up" a discriminatory action by asserting a neutral justification.

    1. Mandated by Statute

      Prominent examples of statutes which demand pretext inquiries are found in the fraud context. This is because pretext is essentially an element of the crime. For example, under the federal wire-fraud statute, (13) the prosecution must prove that the defendant transmitted communications through interstate commerce "having devised or intend [ed] to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises." (14)

      In practice, a common application of the statute is to uncover illegal weapons purchases. (15) Another common application is in the tax-fraud context. (16) A less common application of the statute is to ferret out political pretenses for decisions of elected officials. For example, the Third Circuit affirmed the conviction of aides of the former governor of New Jersey under the wire-fraud statute after the aides caused lane closures on the George Washington Bridge, producing days of traffic gridlock in Fort Lee, New Jersey. The aides' stated reason for doing so, a traffic study, was pretext for punishing Fort Lee's mayor who was not supporting the governor's reelection bid. (17) Where pretext is a key part of the crime, as in this example, statutory interpretation will guide the pretext inquiry.

    2. Not Mandated by Statute

      Where a statute does not mandate an inquiry into pretext, courts have established doctrines that require pretext inquiries in certain contexts. Employment-discrimination claims and discriminatory-peremptory-challenge claims provide traditional examples. (18) Another example, albeit untraditional, is in administrative law. (19)

      1. Employment Discrimination

        Employment-discrimination claims, brought under Title VII of the Civil Rights Act, (20) are evaluated using a burden-shifting framework established by the Court in McDonnell Douglas Corp. v. Green. (21) Under the framework, (22) the plaintiff first must establish a prima facie case, which requires demonstrating that (1) she is a member of a protected class; (2) she "engaged in protected activity," such as applying for the job; (3) her employer "took adverse action against [her]"; and (4) "a causal relationship existed between the protected activity and the adverse employment activity." (23) After the plaintiff makes out a prima facie case, the burden of production shifts to the employer to put forth a nondiscriminatory reason for the action. (24) The plaintiff must then demonstrate that the employer's reason was pretext for discrimination. (25) At all times the plaintiff bears the burden of persuasion. (26) A finding that the employer's stated reason for the adverse action was pretextual does not necessarily mean that the plaintiff will prevail because, as part of her burden of persuasion, the plaintiff must also prove that the actual reason for the action was discriminatory. (27)

        The McDonnell Douglas burden-shifting framework was originally applied to claims alleging discriminatory failure to hire under Title VII. (28) However, since the framework's inception, courts have applied it to uncover pretextual motives in other discrimination claims under Title VII, including retaliation, (29) termination, (30) and failure to promote. (31) The McDonnell Douglas burden-shifting framework has also been applied to discrimination claims under other federal laws which prohibit employment discrimination, such as the Age Discrimination in Employment Act (32) and the Americans with Disabilities Act. (33)

      2. Batson Claims

        Discriminatory-peremptory-challenge claims brought pursuant to the Fourteenth Amendment, are also evaluated using a framework to uncover pretextual motives. As established by the Court in Batson v. Kentucky, (34) to establish a prima facie case of discrimination, the defendant must show that (1) "he is a member of a cognizable [protected] group," (2) "the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's [protected group]" and, (3) "these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their [protected status]." (35) In making this showing, the defendant may rely on the fact that a peremptory challenge, by its nature, allows "those to discriminate who are of a mind to discriminate." (36) After the defendant establishes a prima facie case, the burden of production shifts to the prosecution to provide a neutral explanation for his use of a peremptory challenge to strike the venire member. (37) Thereafter, the trial judge has the duty to determine whether the prosecutor's proposed reasons are the real reasons for the peremptory challenge, or whether they are merely pretextual and the prosecutor actually exercised the peremptory challenge on the basis of race, sex, or another protected characteristic. (38) While the prosecutor's explanation does not have to rise to the level of an explanation for a challenge for cause, (39) some courts have held that it must be "clear and reasonably specific" (40) and cannot simply state that he struck the juror on account of her race, nor can it merely affirm that he struck the juror in good faith. (41)

      3. Administrative Law

        The Supreme Court forged into new territory in its decision in Department of Commerce v. New York, (42) in which Chief Justice Roberts held that the Department of Commerce's stated reason for including a citizenship question on the 2020 census, which was to enforce the Voting Rights Act, was "contrived" (i.e., mere pretext) (43) for its actual reason. (44) The case was accordingly remanded to the agency to come forward with a better explanation for its decision. (45)

        While there was no established framework for the pretext inquiry in this case, as in employment-discrimination or peremptory-challenge cases, it is possible to dissect the Chief Justice's reasoning and separate it from his arbitrary-and-capricious inquiry under the Administrative Procedure Act ("APA"). In reviewing whether the decision to add the citizenship question was arbitrary or capricious under the APA, the Chief Justice concluded that it was not, reversing the District Court's finding. (46) The Chief Justice restated the arbitrary and capricious inquiry as a "determin[ation] only...

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