A Fair Approach in summary judgment proceeding
In 1973, the United States Supreme Court laid down a uniform structure for shifting the burdens of proof in employment discrimination cases. The McDonnell Douglas v. Green three-prong framework requires the employee to establish a prima facie case, the employer to articulate a legitimate, nondiscriminatory reason for its adverse action, and the employee to prove that the employer's reason is pretext 411 U.S. 792 at 794. The McDonnell Douglas v. Green framework was born out of the notion that Title VII cases require proof of sole-factor causation 33 Fl. St. U. L. Rev. 1177 (2006). Essentially, the plaintiff has to prove that if it were not for the plaintiff's protected class, the employer would not have taken the discriminatory action. The question of fairness in the application of the McDonnell Douglass v. Green framework in consideration of motions for summary judgment has been problematic among the courts. Under the McDonnell Douglas v. Green framework, if an employer presents evidence that rebuts a prima facie case of discrimination and moves for summary judgment, the employee is required to show direct evidence of pretext, or risk having the case dismissed 39 Suffolk U. L. Rev. 343 (2006). In Price Waterhouse v. Hopkins, the United States Supreme Court created the mixed-motive approach for analyzing the employer's rebuttal to a prima facie case of discrimination. In addition, the United States Supreme Court, in Desert Palace, Inc. v. Costa, rejected the notion that Title VII claims require the proof of sole-factor causation in order to survive a motion for summary judgment. Instead, the United States Supreme Court constructed the "because of" standard for determining if the discriminatory, improper reason of the employer, could be of sufficient proof of discrimination in order for the employee to survive a motion for summary judgment 539 U.S. 90 at 96. The ruling in Desert Palace, Inc. v. Costa along with the ruling in Price Waterhouse v. Hopkins modifies the third prong of the proof structure that was established in McDonnell Douglas v. Green. The "because of" standard established in Desert Palace, Inc. v. Costa along with the mixed-motive theory of Price Waterhouse v. Hopkins puts the employee and the employer on a level playing field when the employee moves for summary judgment in employment discrimination cases.
Under the McDonnell Douglas v. Green single-motive approach, an employer will be granted summary judgment if he or she articulates a legitimate, nondiscriminatory reason for the adverse employment action, and the employee fails to demonstrate pretext 33 Fl. St. U. L. Rev. 1177 (2006). This type of approach is also known as the "pretext-theory." Under this theory, the employee must prove that the employer's non-discriminatory reason for the adverse employment action was actually a pretext for discriminatory motivation. Once the parties satisfy their relatively light evidentiary obligations, the court decides if there is material fact of intentional discrimination. Under the "pretext-theory," the burden of persuasion remains with the plaintiff throughout the analysis. This approach leaves the employee at a significant disadvantage because the employee bears the burden of persuasion. The United States Supreme Court attempted to mitigate this disadvantage in Price Waterhouse v. Hopkins. In this case, the United States Supreme Court held that the plaintiff might not completely disprove the employer’s non-discriminatory reason, but be able to show that both legitimate and illegitimate reasons motivated the adverse employment action 490 U.S. 228 at 234. This type of analysis in discrimination cases is known as the mixed-motive theory. However, under the mixed-motive theory, the plaintiff is still at a significant disadvantage because he or she still bears the burden of persuasion. The mixed-motive theory modified the third prong of the proof structure that was set forth in McDonnell Douglas v. Green by allowing the employee to show that discriminatory reasoning played part in the adverse employment action that might not appear discriminatory on its face. However, the employee still bears a heavier evidentiary burden than the employer does. The mixed-motive theory still utilizes the burden shifting schematic that was established in McDonnell Douglas v. Green; consequently, when faced with a motion for summary judgment, the employee remains at a great disadvantage because he or she still bears the burden of showing sole-factor causation of discriminatory action, or discriminatory reasoning, in order to survive a motion for summary judgment.
In 2003, the United States Supreme Court further lessened the evidentiary burden of the employee in employment discrimination cases by setting forth a "because of" standard for analyzing evidence of pretext. In Desert Palace, Inc. v. Costa, the United States Supreme Court held that, "A plaintiff need only present sufficient evidence for a reasonable jury to conclude, by a preponderance of the evidence, that discrimination was a motivating factor for any adverse employment practice” 539 U.S. 90 at 98. The ruling in Desert Palace, Inc, v. Costa works in conjunction with the ruling in Price Waterhouse v. Hopkins in putting the plaintiff and the employer on a level playing field when the employer moves for summary judgment. Not only does the plaintiff have the opportunity to have the mixed-motive instruction, but also the plaintiff can meet the evidentiary requirement of a mixed-motive instruction with a lesser evidentiary burden 39 Suffolk U. L. Rev. 343 (2006). Interestingly, the mixed-motive theory established in Price Waterhouse v. Hopkins along with the "because of" standard established in Desert Palace, Inc, v. Costa work within the confines of the McDonnell Douglas v. Green framework. Ultimately, Desert Palace, Inc, v. Costa and Price Waterhouse v. Hopkins affect the summary judgment stage of a Title VII claims by modifying the third prong of the McDonnell Douglas v. Green burden-shifting framework. The impact of modifying the third prong of the McDonnell Douglas v. Green framework allows the plaintiff to present a broad range of evidence in order to create a question of material fact and thus survive a motion for summary judgment.
The examination of the exact functions of the mixed-motive theory and the because-of standard within the third prong of McDonnell Douglas v. Green framework is key in understanding why the plaintiff gains an advantage when the employer moves for summary judgment in employment discrimination cases. The third prong of McDonnell Douglas v. Green framework requires that the employee prove pretext. In addition, the third prong of McDonnell Douglas v. Green framework requires that the employee prove that discrimination occurred. Essentially, the employee is to prove that the employer's stated reason for the adverse employment action is not true, but is in fact, a cover-up for discrimination. Under the original but-for analysis, the employee could use a very narrow scope of evidence to show pretext. The mixed-motive theory established in Price Waterhouse v. Hopkins broadened the causation element to allow the employee to prove a Title VII violation by showing that an impermissible reasoning was a factor in the employment decision 33 Fl. St. U. L. Rev. 1177 (2006). Therefore, under the mixed-motive approach, even if a legitimate reason for the adverse employment action is produced, the employee can survive a motion for summary judgment by showing that discriminatory factors played a part in making a decision that was not discriminatory per se. The Price Waterhouse v. Hopkins mixed-motive theory modifies the third prong of the McDonnell Douglas v. Green framework by allowing the employee to present evidence of discriminatory reasoning by the employer. However, the employee's obligation to prove direct evidence of pretext, or mixed-motive pretext, still leaves the employee at a significant disadvantage when the employer moves for summary judgment.
The ruling in Desert Palace, Inc. v. Costa works with in conjunction with the ruling in Price Waterhouse v. Hopkins in further modifying the third prong of the McDonnell Douglas v. Green framework in order to put the employee and the employer on a level playing field when the employer moves for summary judgment. The elimination of the sole-factor causation requirement allows the employee to survive a motion for summary judgment by showing that discrimination was a motivating factor in the adverse employment action, or in the employer’s reasoning that led to the adverse employment action. The ruling in Desert Palace, Inc. v. Costa broadens the scope of the evidence that can be presented in order to demonstrate that an issue of genuine fact exists in relation to pretext, or mixed-motive pretext, when the employer moves for summary judgment 39 Suffolk U. L. Rev. 343 (2006). Originally, the third prong of the McDonnell Douglas v. Green framework required the employer to disprove the employee’s alleged nondiscriminatory reason for the adverse employment action, or discriminatory reasoning, in order to survive a motion for summary judgment. Desert Palace, Inc. v. Costa changes the third prong of the McDonnell Douglas v. Green framework by requiring that the employee only present sufficient evidence to show that issue of material fact exist. Ultimately, under Desert Palace, Inc. v. Costa, the employee is no longer confined to demonstrating pretext, by direct evidence, in order to survive summary judgment. Rather, at the third prong of the McDonnell Douglas v. Green schematic, a plaintiff need only present sufficient evidence, of any type, for a fact finder to infer that discrimination could have been a motivating factor in the adverse employment action 39 Suffolk U. L. Rev. 343 (2006). The fact that the employer provides a legitimate reason for the adverse employment action becomes irrelevant because the fact finder can now look at the underlying facts in order determine if discrimination played any part in the adverse employment action. This modification to the third prong of McDonnell Douglas v. Green schematic creates a device that allows the employee to survive a motion for summary judgment, even though the employee’s legitimate reason may also be true, or have played some role in the adverse employment action 33 Fl. St. U. L. Rev. 1177 (2006).
Desert Palace, Inc. v. Costa and Price Waterhouse v. Hopkins created two devices that function within the third prong of the McDonnell Douglas v. Green framework. The mixed-motive theory and the because-of test put the employee and the employer on a level playing field when the employer moves for summary judgment. Essentially, under the modified third prong of the McDonnell Douglas v. Green framework, the employee no longer carries the burden of persuasion. Interestingly, the employer, too, does not carry the burden of persuasion. Under the new rule, the employee needs to create only an inference that discrimination was a part of some underlying fact of the employer’s adverse employment action. Just like the employer, the employee need to produce evidence to create a question of material fact as to whether discrimination has occurred. In a recent case, the Eight Circuit Court of Appeals recognized the power of the modified third prong of McDonnell Douglas v. Green by holding that, “Under [Desert Palace, Inc. v. Costa,] the plaintiff only needs to offer evidence that discrimination was ‘a’ motivating factor. She does not need to prove that the Bank's proffered reason was entirely untrue, merely that it was not the sole motivating factor in her discharge” 398 F.3d 1011 (8th Cir. 2005). In this case, the District Court erred in holding that the modified third prong of the McDonnell Douglas v. Green framework applies only in cases where the employee produces sufficient evidence to prove that discrimination was the direct cause of the adverse employment action. On appeal, the Circuit Court held that the direct evidence is not necessary, and that under the new standard, the employee bears only the burden of establishing an issue of genuine fact in order to survive a motion for summary judgment. Ultimately, in Strate v. Midwest Bankcentre, Inc., the employee no longer bears the burden of persuasion. Under the new standard, the only time that the employer is entitled to summary judgment is when the employee fails to establish an issue of genuine fact. Under the modified third prong of the McDonnell Douglas v. Green framework the employee bears a very light burden in order to survive a motion for summary judgment 39 Suffolk U. L. Rev. 343 (2006).
Clearly, Desert Palace, Inc. v. Costa and Price Waterhouse v. Hopkins have affected the way that Title VII cases are decided when the employer moves for summary judgment. However, the ultimate question of what these two ruling have done to Title VII cases remains unclear. The burden-shifting framework that was established in McDonnell Douglas v. Green remains largely unchanged. Furthermore, the general process of litigating Title VII cases remains unchanged. However, when the employer moves for summary judgment, the employee, prior to Desert Palace, Inc. v. Costa and Price Waterhouse v. Hopkins, was at a significant disadvantage because he or she was required to produce direct evidence of discrimination in order to prove pretext. Under such strict evidentiary requirement, when the employer produced rebuttal evidence to a prima facie case of discrimination and moved for summary judgment, the employer had little chance of pursuing a Title VII action unless the employer’s conduct was discriminatory on its face. Under the new rule, the employee’s burden of persuasion is largely eliminated when the employer moves for summary judgment. This new rule makes the employee’s and the employer’s evidentiary burdens equal when the employer moves for summary judgment. The burden of persuasion is no longer with the employee; the employee needs only to create an issue of genuine fact in order to rebut an employer’s reason for an adverse employment action. When examining this minor detail, which functions in the third prong of the McDonnell Douglas v. Green framework, the employee is at a clear advantage when the employer moves for summary judgment. This minor detail affects the entire strategy of litigating Title VII cases. Under the new approach, it is no longer in the employer’s best interests to move for summary judgment when he or she presents rebuttal evidence to an employee’s prima fascia case of discrimination. Under the new rule, if the employer moves for summary judgment, the employee immediately gains an evidentiary advantage over the employer because the employee no longer bears the burden of persuasion Fl. St. U. L. Rev. 1177 (2006). Consequently, the employer can no longer take advantage the strict evidentiary requirements of the original third prong of the McDonnell Douglas v. Green framework in order to end a discrimination case with a motion for summary judgment. Under the new rule, it is in the employer’s best interest to continue litigating a Title VII case without moving for summary judgment; thus, forcing the employee to retain the burden of persuasion. This new approach to litigating Title VII cases puts the employee and the employer on a fair playing field by giving an equal amount of advantage to both parties in the lawsuit.
The burden of proof in Title VII discrimination cases requires that the employee prove ultimate discrimination on the part of the employer. Such a burden seems fair because ultimately the employee is bringing the discrimination action before a court. The problem with the proof structure in Title VII cases occurs when the structure is misused to dismiss claims of discrimination by abusing the strict evidentiary requirements of employment discrimination cases. Prior to Desert Palace, Inc. v. Costa and Price Waterhouse v. Hopkins, it was very easy for an employer to dismiss a Title VII action when the employee lacked direct evidence of discrimination. Therefore, the employee was at a significant disadvantage because even though he or she had circumstantial evidence of discrimination, the employer could prevail by moving for summary judgment once the employer produced a legitimate reason for the adverse employment action. Under the current rule for litigating Title VII cases, the employee has gained a newfound advantage over the employer if the employer moves for summary judgment. Once the employer moves for summary judgment, the employee no longer bears the heavy evidentiary burden of proving discrimination. The employee only bears the requirement of creating a question of material fact in order to continue the Title VII action. Thus, the employee now has a new weapon in litigating Title VII cases that prevent the employer from dismissing circumstantial cases of discrimination. It is clear that Desert Palace, Inc. v. Costa and Price Waterhouse v. Hopkins have created a device that puts the employee and the employer on a level playing field in Title VII litigation.
Bibliography
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)
Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003)
Strate v. Midwest Bankcentre, Inc., 398 F.3d 1011 (8th Cir. 2005)
Darby Dickerson, Oasis or Mirage? Desert Palace and its Impact on the Summary Judgment, 33 Fl. St. U. L. Rev. 1177 (2006)
Michael J. Hayes, That Pernicious Pop-Up. The Prima Facie Case, 39 Suffolk U. L. Rev. 343 (2006)
Works Referenced
Donald J. Spero, Desert Palace, Inc. v. Costa—Does McDonnell Douglas Survive, 107 Harv. L.
Rev. 1175 (2004)
29 A.L.R. Fed. 792 (1976)
14A C.J.S. Civil Rights § 241
