Employee Rights and Employment Policy Journal

 Employment discrimination cases are occupying a rapidly expanding portion of the dockets of federal district courts. After the adoption of Title VII of the Civil Rights Act of 1964, which prohibited discrimination on the basis of race, sex. Religion, ethnicity and national origin, two predominate theories emerged: disparate treatment and disparate impact. Disparate impact cases focus on the discriminatory effect of facially neutral employment practices, while disparate treatment cases focus on instances of intentional discrimination where a plaintiff is required to prove discriminatory motive.

 The order and allocation of proof in disparate treatment cases was established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The burden shifting scheme was subsequently clarified in Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1982). The Supreme Court resolved a debate regarding the consequences of proof of pretext by holding, in St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993) that proof of pretext permits, but does not require, a judgment for the plaintiff. But this decision created a new problem: should proof of pretext defeat a summary judgment motion or is independent evidence of discriminatory motive required?

The circuits are divided in answering this question, and the summary judgment confusion also reflects an underlying problem: an element of doubt and reluctance in the courts' evaluation of discrimination claims. This tone of skepticism was implicit in the Supreme Court's decision in St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993) and reflects what some legal scholars have described as the "perpetrator's perspective," an approach that has resulted in elaborate proof regimes, making it inordinately difficult for plaintiffs to prevail in civil rights cases. In Reeves v. Sanderson Plumbing Products, 500 U.S. ______ (2000), the Supreme Court held that proof of pretext provides an adequate evidentiary basis for a finding of discriminatory motive. The circuits that require independent proof of discrimination beyond evidence of pretext at the summary judgment stage are imposing an unwarranted burden on plaintiffs and are misconstruing the requirements of Rule 56.