Pregnancy discrimination cases are rarely built on direct or “smoking gun” evidence. Instead, employment discrimination cases typically hinge on circumstantial evidence. The Supreme Judicial Court’s (“SJC”) ruling in Verdrager v. Mintz Levin, in which it reversed summary judgment thus allowing the case to proceed to trial, is a prime example of the various ways in which pretext for pregnancy and gender discrimination as well as retaliation may be inferred. The case is fact-intensive with a long, procedural history. Below is a summary of certain key facts along with a general overview of its precedential value among employment law attorneys, both in Massachusetts and in other jurisdictions.
Advancing an employment discrimination case to trial often involves a hurdle known as summary judgment, which is governed by Rule 56 of the Massachusetts Rule of Civil Procedure and it’s federal corollary. Employers often rely on Rule 56, typically after the close of discovery, as a final attempt to dismiss an employment discrimination case and avoid the risk of trial. This is a watershed moment in the litigation.
As the U.S. Supreme Court made clear in Anderson v. Liberty Lobby, in considering an employer’s Motion for Summary Judgment, the employee’s evidence of discrimination “is to be believed, and all justifiable inferences are to be drawn in his favor.” In Reeves v. Sanderson Plumbing Products, the Supreme Court also cautioned that a judge “may not make credibility determinations or weigh the evidence” because these are jury functions. Rather, as articulated by the Massachusetts Supreme Judicial Court in Flesner v. Technical Communications, a “judge’s mere belief that the movant is more likely to prevail at trial is not a sufficient basis for granting summary judgment” in the employer’s favor and dismissing the case.
Proving employment discrimination without direct evidence – regardless of whether its based on age, handicap, or some other protected category – ultimately boils down to whether the employee can show that the employer’s stated reason for the adverse employment action (e.g., termination, demotion, failure to promote) is a pretext for unlawful discrimination. As discussed in Proving Employment Discrimination Through Circumstantial Evidence, employment discrimination cases are typically proven through circumstantial (as opposed to direct) evidence under a three-part, burden-shifting framework.
It is in the final stage of this framework that an employee must carry the burden of showing pretext. As the non-exhaustive, baker’s dozen list below illustrates, there are numerous ways in which pretext for unlawful employment discrimination can be inferred:
Employment discrimination claims often hinge on the admissibility of evidence. A plaintiff bringing an employment discrimination claim may, for example, offer into evidence testimony from other employees who also believe they were victims of discrimination. Such evidence is referred to as “me too” or propensity evidence and has been a subject of debate among litigants. Be it discrimination based on age, gender, or another protected class, propensity evidence can be powerful if admissible.
As background, Federal Rule of Evidence 404(b)(2), which is virtually identical to the Massachusetts corollary, provides that evidence of a crime, wrong, or other act “may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Because motive, intent, and state of mind are directly at issue in employment discrimination claims, “me too” or propensity evidence may be properly admitted under these rules under certain circumstances. Other relevant portions of the Rules of Evidence with respect to “me too” or propensity evidence include FRE 401 (Test for Relevant Evidence) and FRE 403 (Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons).