Aside from cases involving direct or “smoking gun” evidence, which is rare, proving an employment discrimination claim is often nuanced and accomplished through the use of circumstantial evidence. As the Supreme Court in Rogers v. Missouri Pacific has long recognized, such evidence can even be the most powerful of the two:
Circumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence.
The Supreme Court in McDonnell Douglas v. Green formulated a burden-shifting analysis that employees may utilize to prove discriminatory treatment prohibited under Title VII – including retaliation and employment discrimination based on pregnancy, race, or some other protected category. Under this framework, a plaintiff must first state a prima facie case of discrimination, which entails a showing that the employee falls within a protected class, was qualified for the job, and suffered an adverse employment action. From there, the burden shifts to the employer to produce a legitimate, non-discriminatory reason for the adverse employment action. In the final stage, the burden reverts back to the employee to show that the employer’s reason was a pretext for unlawful discrimination.
Since that time, the Supreme Court has interpreted the McDonnell Douglas v. Green burden-shifting framework in several key decisions:
- In Texas Dep’t of Community Affairs v. Burdine, the Supreme Court considered to what extent in the context of a gender discrimination claim under Title VII, after an employee establishes a prima facie case, an employer must articulate a legitimate, nondiscriminatory reason for the challenged employment action. The Court held an employer’s burden at this stage is one of production and not of persuasion, noting however that the employer must clearly and with reasonable specificity “produce admissible evidence which would allow the trier of fact rationally to conclude that the employment decision had not been motivated by discriminatory animus.”
- In St. Mary’s Honor Center v. Hicks, the Supreme Court considered a race discrimination under Title VII and resolved a circuit split referred to as the pretext-only v. pretext-plus debate. Specifically, the Court held that “rejection of the defendant’s proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination” and no additional proof of discrimination is required. In doing so, the Court also noted that the mere rejection of the defendant’s proffered reasons does not compel judgment for the plaintiff, who at all times bears the ultimate burden of persuasion. At the time, the Hicks decision was largely interpreted as unfavorable to employees and as creating a pretext-plus requirement.
- In Reeves v. Sanderson Plumbing, the Supreme Court reviewed and age discrimination claim under the Age Discrimination in Employment Act. There, the Court expanded upon its ruling in Hicks, stating “the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose.” The Court further stated that “once the employer’s justification has been eliminated, discrimination may well be the most likely alternative explanation, especially since the employer is in the best position to put forth the actual reason for its decision.” The discretion of jurors acknowledged under the Reeves decision to infer unlawful employment discrimination in such circumstances makes the burden of proof under state and federal anti-discrimination laws similar.
As shown below, the Massachusetts Supreme Judicial Court’s interpretation of the burden of proof that an employee who brings an employment discrimination claim must carry has also evolved over time:
- In Wheelock College v. Massachusetts Commission Against Discrimination, the SJC considered for the first time an employee’s burden of proof to prevail on an employment discrimination claim in a sex discrimination case under the Massachusetts Fair Employment Practices Act. In doing so, the SJC stated that an employee “should prevail” on an employment discrimination claim where an employer provides a justification for an employment decision that “has no reasonable support in the evidence or is wholly disbelieved.” In addition, the SJC noted that an employee satisfies her burden “by proving by a preponderance of the evidence that the respondent’s facially proper reasons given for its action against him were not the real reasons for that action.” From this case, Massachusetts’ status as a “pretext-only” jurisdiction was born.
- In Blare v. Husky, which involved a claim for age discrimination, the SJC explicitly departed from the Supreme Court’s ruling in St. Mary’s Honor Center v. Hicks and confirmed that Massachusetts is a “pretext-only” jurisdiction. As such, the SJC opined that “a plaintiff who has established a prima facie case and persuaded the trier of fact that the employer’s articulated justification is not true but a pretext is entitled to judgment.” Arguably, this is a significant difference from Hicks, which held that such a finding does not compel a finding in the employee’s favor, although a judge or jury may choose to make an inference of unlawful employment discrimination.
- In Abramian v. President and Fellows of Harvard College, the SJC clarified it’s ruling in Blare v. Husky in reviewing a race discrimination verdict, and reasoned that compelling a judgment in an employee’s favor after a showing of pretext “stripped the jury of its fact-finding role.” In doing so, the court announced “[w]e never intended this result.” As such, under Abramian, an employee’s burden of proof under the Massachusetts Fair Employment Practices Act became virtually identical to federal anti-discrimination laws.
- In Lipchitz v. Raytheon, in reviewing a gender discrimination verdict, the SJC ruled that the trial court erred in not instructing the jury that an employee must show a causal link between an employer’s discriminatory animus and the adverse employment action in question. Such a showing, the SJC noted, does not require the employee “to disprove every reason articulated by the defendant or suggested in the evidence.” Rather, this burden can be met “by persuading the fact finder that it was more likely than not that at least one reason was false,” which alone can allow a jury to infer that an employer’s “discriminatory animus was the determinative cause of the adverse employment decision.”
- In Trial Court v. Massachusetts Commission Against Discrimination, which involved a claim for wrongful termination based on gender, the SJC highlighted the discretion afforded to a fact finder in ultimately deciding whether unlawful motive played a role in the adverse employment action. This decision made clear that a fact finder need not explicitly reject each and every nondiscriminatory reason offered by the employer to prevail on an employment discrimination claim. In particular, the SJC opined that “even when nondiscriminatory reasons play some role in a decision …, that decision may still be unlawful if discriminatory animus was a ‘material and important ingredient’ in the decision-making calculus.”
- In Bulwer v. Mt. Auburn, which involved a claim for wrongful termination based on race and national origin, the SJC affirmed the Appeals Court’s reversal of summary judgement (found here) and clarified the employee’s burden of proof at the third stage. Specifically, the SJC rejected the employer’s contention that an employee must present evidence that the “reason for termination constituted a pretext concealing a discriminatory purpose” to defeat a motion for summary judgment. In doing so, the decision made clear that Massachusetts remains a pretext-only jurisdiction and that such a formulation “overstates the plaintiff’s burden at the summary judgment stage.” Rather, citing it’s earlier ruling in Wheelock College, an employee “need only present evidence from which a reasonable jury could infer that ‘the respondent’s facially proper reasons given for its action against him were not the real reasons for that action.’”
As these decisions illustrate, prevailing in an employment discrimination claim requires careful consideration of the burdens of proof, which will inevitably continue to evolve. In many cases, advocating for a jury instruction that properly highlights under what circumstances an employee is entitled to judgment will be the difference between winning and losing.
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