Proving Employment Discrimination: Attacking the Employer’s Business Decision
Employment discrimination cases based on circumstantial evidence typically follow the three-part burden shifting framework outlined in the U.S. Supreme Court decision in McDonnell Douglas v. Green. In the first stage, the employee must satisfy the elements of a prima facie case, which can somewhat vary from age discrimination to pregnancy discrimination to handicap discrimination claims.
After the employee establishes a prima facie case, the burden shifts to the employer to set forth a legitimate, non-discriminatory reason for the adverse action – which can range from termination to demotion or even a change in work location. In the final stage of the framework, and as the Massachusetts Supreme Judicial Court in Bulwer v. Mt Auburn made clear, the employee must show that the employer’s “facially proper reasons given for its action against him were not the real reasons for that action.” From there, a jury may infer pretext for unlawful employment discrimination.
As we discussed here, there are numerous ways in which pretext for discrimination may be inferred. One important, often overlooked, way to demonstrate pretext is by challenging the veracity or reasonableness of the employer’s business judgment for taking the adverse action in question. In Loeb v. Textron, for example, the First Circuit made clear that “[t]he reasonableness of the employer’s reasons may of course be probative of whether they are pretexts. The more idiosyncratic or questionable the employer’s reason, the easier it will be to expose it as a pretext, if indeed it is one.” The U.S. Supreme Court in Texas Dep’t of Community Affairs v. Burdine later agreed, stating:
The fact that a court may think that the employer misjudged the qualifications of the applicants does not in itself expose him to Title VII liability, although this may be probative of whether the employer’s reasons are pretexts for discrimination.
Other circuits have since acknowledged the validity of proving pretext in this manner:
In Dister v. Cont’l Group, the Second Circuit held that “facts may exist from which a reasonable jury could conclude that the employer’s ‘business decision’ was so lacking in merit as to call into question its genuineness,” allowing an inference of pretext.
In In re Lewis, the Sixth Circuit held that an employee may reveal pretext by showing that the “asserted business judgment was so ridden with error that defendant could not honestly have relied upon it.” Later, in Smith v. Chrysler, the Sixth Circuit reiterated this principle and noted that courts should inquire into “whether the employer made a reasonably informed and considered decision before taking an adverse employment action.”
In Aka v. Washington Hospital, the District of Columbia Court of Appeals observed that “[i]f a factfinder can conclude that a reasonable employer would have found the plaintiff to be significantly better qualified for the job, but this employer did not, the factfinder can legitimately infer that the employer consciously selected a less-qualified candidate — something that employers do not usually do, unless some other strong consideration, such as discrimination, enters into the picture.”
Even before attacking the reasonableness of the employer’s decision, it is important to evaluate whether the employer has met its burden to assert a legitimate, non-discriminatory reason justifying the adverse action in the first place. While a subjective reason may suffice to satisfy this burden, numerous courts have noted that the reason must also be clear and reasonably specific. In School Committee of Boston v. Labor Relations Commission, for instance, the Massachusetts Appeals Court held that the employer failed to satisfy its burden where it failed to, among other things, identify the decision-maker who made the lay off decision, the time frame in which the decision was made, and the rationale for laying off the employees in question. Numerous circuit and federal courts agree with this reasoning:
In Iadimarco v. Runyon, the Third Circuit noted “[t]he mere fact that one who discriminates harbors a sincere belief that he hired the ‘right person’ can not masquerade as a race-neutral explanation for a challenged hiring decision.” The court pointed out that “[s]uch a belief, without more, is not a race-neutral explanation at all, and allowing it to suffice to rebut a prima facie case of discriminatory animus is tantamount to a judicial repeal of the very protections Congress intended under Title VII.”
In Alvarado v. Texas Rangers, the Fifth Circuit stated that “[w]ithout evidence of the candidates’ relative qualifications, the mere assertion that DPS hired the best qualified candidates is insufficient to satisfy its burden of production, as it does not afford Alvarado ‘a full and fair opportunity to demonstrate pretext.'”
In EEOC v. Target, the Seventh Circuit held that “Target presented an ostensibly objective nondiscriminatory reason but failed to articulate what criteria informed this reason. Target’s proffered reason is insufficient to satisfy its burden to frame an issue of fact so that the court and the EEOC can identify what evidence might rebut that reason. Because Target’s reason is insufficient, the EEOC can survive summary judgment without refuting Target’s proffered reason.”
In Impact v. Firestone, the Eleventh Circuit opined that simply representing that the employer selected the candidates with the best qualifications does not satisfy the burden of production. Rather, the employer must actually detail the qualifications it desired and the details of its employment decision.
In Walker v. Mortham, the Eleventh Circuit made clear that the “defendant cannot testify in abstract terms as to what might have motivated the decision-maker; it must present specific evidence regarding the decision-maker’s actual motivations with regard to each challenged employment decision.”
In Pears v. Mobile County, the Southern District of Alabama observed that the employer’s “burden of production is exceedingly light, but is not so ethereal as to be nonexistent, and defendants cannot satisfy it with unvarnished guesswork and cursory conclusions unbacked by evidentiary support.”
In Johnson v. Women’s Christian Alliance, the Eastern District of Pennsylvania found that the employer’s claim that it reassigned plaintiff due to “a desire to reorganize and restructure its personnel” does not satisfy its burden of production and noted the lack of “details or explanation concerning the need or rationale for the reorganization, details of its implementation, or its effect on other employees.”
Scrutinizing the second stage of the burden-shifting framework can make a significant difference in surviving summary judgment and prevailing at trial. As these decisions illustrate, to satisfy its burden, an employer need not simply provide any non-discriminatory reason for the adverse action but, rather, must supply a reason that is both “clear and reasonably specific.” Such details provide the employee with a meaningful opportunity to evaluate the reasonableness of the decision and, where appropriate, to put forth evidence allowing for an inference of unlawful employment discrimination to be drawn.Learn More
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