Section 27 Plaintiff?s Proof of Pretext Under the Federal McDonnell Douglas Analysis

• Library: Employment Discrimination 2008

If the employer articulates a legitimate, nondiscriminatory reason, the plaintiff must demonstrate that the employer’s
reason is a pretext for discrimination. The burden of proving discrimination remains on the plaintiff at all times. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515–16 (1993). The plaintiff must do more than discredit the employer’s articulated reason and must show that the employer’s articulated reason is a pretext for discrimination. Id. “It is not enough, in other words, to disbelieve the employer; the factfinder must believe the plaintiff’s explanation of intentional discrimination.” Id. at 519.

In Hicks, the Supreme Court rejected a “pretext [only]” approach in which a fact-finder’s disbelief of the employer’s reasons would compel judgment for the plaintiff. It also declined to institute a “pretext [plus]” approach in which an employee would be required to show discriminatory animus in addition to pretext. Instead, the Court fashioned a fact-sensitive inquiry: whether the plaintiff has provided evidence from which a reasonable fact-finder could conclude that the employer intentionally discriminated against the plaintiff. One court described this approach as follows:

[T]he Supreme Court envisioned that some cases exist where a prima facie case and the disbelief of a pretext could provide a strong enough inference of actual discrimination to permit the fact-finder to find for the plaintiff. Conversely, we do not think that the Supreme Court meant to say that such a finding would always be permissible...