Academic journal article Missouri Law Review

Anti-Discrimination Law in Peril?

Academic journal article Missouri Law Review

Anti-Discrimination Law in Peril?

Article excerpt

I. INTRODUCTION

In a society that professes allegiance to equal opportunity, direct evidence of discrimination is increasingly rare. In recognition of this fact, in 1973 the U.S. Supreme Court established a framework through which Title VII plaintiffs may prove discrimination claims with circumstantial evidence. Under the three-step minuet of McDonnell Douglas Corp. v. Green, (2) a plaintiff sets forth a prima facie case (3) by showing that she is a member of a class protected by Title VII, that she applied for the position in question and was qualified, that notwithstanding her qualifications she was rejected, and that the employer continued to search for persons with like qualifications. (4) The employer is then required to offer a legitimate, non-discriminatory reason for its action, (5) after which the employee has an opportunity to establish pretext that is to show that the employer's justification is not credible or that it is a cover for discrimination. (6) The assumption behind the showing of pretext is that an employer is best situated to know and to explain its action, and if the plaintiff proves that explanation to be false, then it is reasonable to infer that discrimination actually motivated the employer. (7) Thus, in 1981, in Texas Department of Community Affairs v. Burdine, the Supreme Court stated that a plaintiff may succeed in establishing discrimination "either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." (8)

Over time, however, some courts began to question whether a showing of pretext was sufficient to establish discriminatory animus and began to require that plaintiffs produce additional evidence, or pretext-plus, in order to prevail. (9) This additional requirement in effect undermined the McDonnell Douglas framework and made it extraordinarily difficult for plaintiffs to win employment discrimination cases based on circumstantial proof. Absent additional "direct" evidence of discriminatory motive, courts were prone to reject plaintiffs' circumstantial claims at the summary judgment stage of the litigation process. In Reeves v. Sanderson Plumbing Products, Inc., the Supreme Court sought to correct the imposition of a pretext-plus standard by clarifying that the prima facie case, combined with evidence of pretext, should be sufficient to get most discrimination cases to a jury--though a jury might still find in favor of the defendant. (10) Although the Court left room for judges to consider defendants' motions for summary judgment and judgment as a matter of law, at least one Justice thought that these motions should presumptively not be used to resolve pretext cases, given the fact-specific nature of discrimination claims and the issues of credibility that are frequently involved. (11) Indeed, this appears to be the overall tenor of the Reeves decision. (12) Yet, as Professor Natasha Martin's excellent article in this volume demonstrates, a decade after Reeves, lower courts continue to employ procedural devices like summary judgment to reject plaintiffs' claims. (13) In so doing, they accept employer arguments, like the honest belief and same-actor defenses, (14) which are ill suited for summary adjudication. (15)

In this short Essay, I explore the tendency of courts to summarily dismiss employment discrimination claims and consider whether the judicial skepticism, if not outright hostility, we are witnessing is limited to statutory actions under Title VII or is instead part of a broader movement against discrimination claims. In Part II, I suggest that between 1973, when McDonnell Douglas was decided, and 2009 societal beliefs about the prevalence of discrimination in the United States changed. In 1973, as the country emerged from the Jim Crow era, the presumption was one of widespread discrimination. Today, in so-called "post-racial" America, an opposite presumption seems to exist. …

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