Pretext in peril.

AuthorMartin, Natasha T.
PositionPart 1 - Complexity of proving discriminatory bias
  1. INTRODUCTION II. SUBSTANCE MEETS PROCEDURE: THE TANGLED WEB OF TITLE VII LAW IN CIRCUMSTANTIAL EVIDENCE CASES A. The Substance: The McDonnell Douglas/Burdine Framework B. The Quest for Pretext C. The Procedural Framework--The Pre-trial Dilemma of Summary Judgment in the Employment Discrimination Context III. SUBSTANCE AND PROCEDURE--A DANGEROUS INTERSECTION A. The Endangered Element of the McDonnell Douglas Framework: "Chipping Away " at Pretext B. Evidence of Pretext--What Remains? IV. A CASE STUDY: THE SAME-ACTOR DOCTRINE A LESSON IN PROCEDURAL INJUSTICE A. The Same-Actor Doctrine: Origin and Evolution B. A View from the Ground: How the Same-Actor Doctrine Distorts the Pretext Inquiry C. Same-Actor Doctrine and the Consequences for Justice D. Ideas for Addressing the Immunity-for-Hire Problem V. DEBUNKING THE MYTHS OF DISCRIMINATORY ANIMUS A. Exposing the Ugly Truth B. A Call for New Beginnings VI. CONCLUSION I. INTRODUCTION

    Plaintiffs have a hard row to hoe in proving unlawful discriminatory bias. Without the smoking gun document, the blatant biased statement, or other direct evidence, plaintiffs must rely on a variety of factual circumstances to weave a story that convinces the fact-finder that an employer's actions constitute unlawful discrimination. Notwithstanding the best efforts of plaintiffs and their lawyers, claims of workplace bias are met with skepticism. (1) This jaundiced view pervades the courts as well, reflected in the way that judges interpret evidence of unlawful bias. (2) Against this backdrop of antipathy, plaintiffs must prove discriminatory motive--that their employers harbored bias and therefore intended to treat them less favorably because of their differences, notwithstanding their assertions otherwise. This intent requirement severely impedes plaintiffs in their efforts to demonstrate that the employers' reasons are merely pretext for unlawful discrimination. (3) It remains largely undisputed that demonstrating motive remains the primary culprit of plaintiffs' failures to prove employment discrimination. (4)

    In addition to the substantive aspects of workplace law, several scholars have highlighted various procedural impediments, namely summary judgment, as the silent killers of plaintiffs' efforts to pursue their civil rights. (5) Faced with voluminous dockets, courts search for ways to distinguish the credible claims of discrimination from those less plausible allegations of employer misconduct. In setting the framework for adjudication of workplace bias claims, courts resort to procedural devices such as summary judgment with increasingly regularity. (6) After assessing the evidence of an abbreviated record, for example, judges overwhelmingly grant employers' requests for summary dismissal or other relief. (7) Trials are rare in employment discrimination cases, which signals that courts are left with little or no doubt that the defendants' theories are the believable ones. (8) Accordingly, procedure is the chisel that courts are using to pare down the rights of employees.

    This Article examines the interplay of procedure and substance under Title VII law. Specifically, I dissect judicial action at the crossroads of civil rights law and federal civil procedure by analyzing how courts assess the sufficiency of plaintiffs' evidence of disparate treatment and develop interpretive formulations that serve to hamstring plaintiffs' efforts to prove workplace discrimination.

    The courts provide a critical arena in which substantive and procedural law interacts, which has produced a kind of symbiotic relationship between law and employment organizations as courts accord employers great deference in their decision making. Plaintiffs' attempts to convey their stories fall on deaf ears as courts find ways of rationalizing any of the various challenges made to an employers' business justification. Far too often, this junction results in the premature dismissal of a plaintiff's cause of action before she has an opportunity to conduct discovery or has access to a forum to flesh out the essence of her claim. I refer to these maneuvers as "evidentiary-dilution devices"--evaluative constructs that have emerged from the courts' interpretive rulemaking under Title VII.

    Pretext is in peril. My premise is that the courts' evidentiary dilution and its procedural reinforcement has become a dangerous force for Title VII plaintiffs to contend against in proving pretext for discrimination. This interplay allows courts to usurp the role of the jury, heighten the burden borne by plaintiffs in proving workplace bias, and thwart efforts to unearth the corrosive effects of workplace bias.

    With increased diversity in the American labor force, one may surmise that workers experience inclusive employment settings where they contribute without being inhibited by gender, race, color, national origin, religion, age, disability, sexual orientation, or other differences. While barriers to entry have diminished in many respects, court dockets do not reflect such tranquility. In fact, claims of discrimination are on the rise. (9) In a climate of multiculturalism and "post-racial" discourse, (10) identity differences continue to influence perceptions of alleged employer wrongdoing. (11) One expert identifies an "anti-race plaintiff ideology" permeating the judiciary and society in general. (12) And this ethos intensifies the hardship experienced by plaintiffs seeking to prove discriminatory motive. (13)

    Straddling procedure and substance, this Article highlights the complexity of proving discriminatory bias in the modern employment setting. By exploring discriminatory animus through the lens of procedure, I seek to (i) challenge the judiciary's evaluative function in discrimination cases, particularly at the pre-trial stage; (ii) deepen understanding of the nature of workplace bias; and (iii) underscore what critical legal scholars have contended for years--that law and facts are far from neutral but highly contingent.

    I begin, in Part II, chronicling the evolution of the prevailing analytical framework for circumstantial evidence cases under Title VII. This section also discusses relevant procedural standards, focusing primarily on summary judgment, a critical stage of the litigation process for plaintiffs. The goal in this section is to frame the dual bodies of law that affect the ability of plaintiffs to succeed in proving unlawful workplace discrimination. Part III illustrates how substance and procedure interact, resulting in what I term "evidentiary-dilution devices," whose forces are enhanced by the procedural platform upon which they are applied. Thus, this section focuses on plaintiffs' efforts to demonstrate pretext--that the employer's stated reasons mask unlawful discrimination--chronicling the evolution of the law governing the courts' assessment of whether a plaintiff has proved unlawful bias.

    This Article seeks to bridge the divide between theory and praxis. By examining how law operates on the ground in the context of the litigation process, I illuminate how procedure and Title VII collide to distort the pretext prong. To further accomplish this task, Part IV engages a particularly striking example of judicial rulemaking--the same-actor principle--as a case study reference to reveal the seeming unfettered discretion of courts in defining what constitutes discrimination under Title VII. In 1991, the Fourth Circuit further impeded plaintiffs' quests to establish pretext when it proclaimed that the nature of the hirer-firer relationship bears significantly on the ultimate question of discrimination. (14) In its most potent form, the same-actor principle provides that, where the same decision maker engages in an alleged adverse employment action within a short period of time after making a positive employment decision, such evidence creates a strong presumption that the decision maker harbored no unlawful discriminatory animus. (15) The same-actor doctrine illuminates the complexity of discrimination and the danger of judges improperly invading the province of the jury by making credibility assessments and drawing inferences from the facts.

    This endeavor in Part IV situates the doctrine to the relevant substantive jurisprudence and demonstrates how the principle contravenes standards set forth in both McDonnell Douglas Corp. v. Green (16) and Reeves v. Sanderson Plumbing Products, Inc. (17) Through analysis of case decisions, Parts III and IV magnify, in practical terms, how these constructs, including the same-actor principle, operate to conceal discrimination. Additionally, these sections offer some empirical and anecdotal information to highlight plaintiffs' precarious position when this interpretive formula is applied. Part IV concludes with some prescriptions for dealing with this distortion of the pretext inquiry.

    In Part V, I situate the pretext problem within the larger discussion of debunking the myth of discriminatory animus under Title VII, arguing that pretext is now the endangered element under disparate treatment law. This section discusses the limitations of Title VII disparate treatment law to promote justice effectively without a more workable definition of what constitutes discrimination and, in particular, a pretext for discrimination. Discussing possible reasons for this unfortunate trend and offering consideration for reform, the proposal argues that the various interpretive sub-rules should be abolished or applied with greater care. If courts insist on using such ineffective coping mechanisms in response to ballooning dockets, I encourage not only restraint in summary dismissal but also opportunities for plaintiffs to fairly rebut the faulty underlying assumptions of these constructs in light of the particular workplace dynamics involved. Overall, I call for greater contextualization of workplace circumstances before courts make dismissal decisions based on an abbreviated...

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