The emergence of a more conservative federal judiciary in recent years has produced many changes in what was once considered settled doctrine in employment discrimination law. Although much of the public controversy has focused on "quotas" and affirmative action, a split has recently emerged in the courts of appeal over the less visible but equally significant issue of how much evidence a plaintiff needs in order to prevail in an employment discrimination case. This Article highlights a trend within some appellate courts to impose difficult, and perhaps unwarranted, burdens of proof on plaintiffs.
Specifically, Professor Lanctot demonstrates that some circuits permit a plaintiff to prevail by proving that the reasons offered by an employer for the adverse employment action are false. Others hold that this showing of "pretext" is insufficient, and that a plaintiff must prove not only that the reasons offered are false but also that the true reasons for the employment action are discriminatory. Professor Lanctot concludes that requiring such a "pretext-plus" showing is inconsistent with both relevant Supreme Court precedent and traditional evidentiary principles, and has the effect of treating employment discrimination cases as if they were some uniquely disfavored type of lawsuit that may not be proven circumstantially.
Catherine J. Lanctot,
The Defendant Lies and the Plaintiff Loses: The Fallacy of the Pretext-Plus Rule in Employment Discrimination Cases,
43 Hastings L.J. 57
Available at: https://repository.uchastings.edu/hastings_law_journal/vol43/iss1/2