50 for 50: Five Decades of the Most Important Discrimination Law Developments - Number 16: Employers Fight Against Title VII Lawsuits With Summary Judgment

by Hirschfeld Kraemer LLP
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Summary judgment motions have long been in the toolkit for employers to combat weak and frivolous Title VII claims brought by their former (and sometimes, current) employees.  But that was not always the case, and recent developments in the case law may change that.  Prior to 1986, perceived judicial hostility toward summary judgment motions and the onerous burdens of proof imposed on a moving party discouraged the use of summary judgment procedure.  In what appears to be in connection with increasingly crowded dockets and rising litigation costs, the Supreme Court decided three cases in 1986 – Matsushita Electric Industrial Co. v. Zenith Radio Corp., Anderson v. Liberty Lobby, and Celotex v. Catrett—that changed the manner in which courts approach summary judgment, paving the way for defendants to obtain summary judgment in federal court.  Shortly thereafter, Congress enacted the Civil Rights Act of 1991, which provided for jury trials for employment discrimination cases and incentivized employers and courts alike to resolve more employment cases before trials. 

Since that time, courts have delineated a variety of tests and frameworks for summary judgments in employment cases.  Commencing with McDonnell Douglas Corp. v. Green, and elaborated on in Texas Dep’t of Community Affairs v. Burdine, the Supreme Court articulated a burden-shifting analysis to evaluate a Plaintiff’s discrimination case.  Under this analysis, a plaintiff can satisfy its burden by utilizing circumstantial evidence to establish a prima facie case of discrimination (i.e., that plaintiff was a member of the protected class, was qualified for the position that he/she held or applied for, suffered from an adverse employment action, and a similarly-situated employee not in plaintiff’s protected class was treated more favorably than plaintiff or other evidence exists giving rise to an inference of illegal discrimination relating to the adverse employment action at issue).   If the plaintiff is successful (which they often are), a presumption of discrimination is established and the burden shifts to the defendant to articulate a non-discriminatory rationale for its actions.   Once the defendant establishes such a reason (which employers are likely to do), the presumption of discrimination drops out of the case, and the burden shifts again to the employee-plaintiff to prove by a preponderance of the evidence that the defendant’s proffered reason was merely a “pretext” (i.e., a coverup for a discriminatory decision) for intentional discrimination.

Despite the well-intended frameworks of McDonnell Douglas and Burdine, a circuit split arose about how courts were to treat a case where the fact-finder had concluded that the employer’s articulated reason was untrue.  Some circuits held that plaintiff had to provide specific additional evidence that the employer’s motive was improper rather than just demonstrating that the employer’s reason was untrue.  On the other hand, other circuits held that an employer’s untruthfulness should put the employer in no better position than if it had offered no evidence at all, requiring judgment in favor of plaintiff.   The Supreme Court in St. Mary’s Honor Center v. Hicks ended the split, by holding that proof of pretext does not compel judgment for a plaintiff, but the trier of fact is permitted to enter judgment for the plaintiff based on permissible inferences raised by the prima facie case and its disbelief of the employer’s reason.  In other words, the plaintiff still had the burden of persuasion that the adverse employment action was a result of impermissible discrimination but the employer’s proffered lie could be used against it.

Yet far from clear, the framework under McDonnell Douglas and its progeny continued to cause ambiguities in the amount of evidence needed to sustain a discriminatory cause of action.  In 2000, the Supreme Court decided Reeves v. Sanderson Plumbing Products, Inc., in its attempt to clarify such ambiguities.  It rejected any per se rule that plaintiffs with nothing more than pretext could never prevail.  Rather, it instructed lower courts to “take a case-by-case approach” and to weigh the “evidence, taken on the whole” in determining whether a jury could reasonably find discriminatory intent from the employer’s lack of candor – that is, a plaintiff can show intentional discrimination indirectly by demonstrating that the employer’s explanation is unworthy of credence.  While Reeves decision has not completely eliminated the possibility for employers to defeat Title VII claims on summary judgment, it did severely limit the strength of summary judgment motions for employers by restricting the power of the district courts to dispose of cases in which there is evidence of pretext but no explicit evidence of unlawful discrimination related to the adverse employment action.

 

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