Truth or Consequences: Why the Rejection of the Pretext Plus Approach to Employment Discrimination Cases in Reeves v. Sanderson Plumbing Establishes the Better Legal Rule
McCormick, Marcia L.
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There is a constant tension in employment discrimination law between the recognition that discrimination can be subtle without having direct evidence of its existence and the recognition that under the law, hard evidence is necessary to prove an ultimate fact by a preponderance of the evidence. It was this tension that prompted the Supreme Court to devise a method of proof for employment discrimination cases that differs from the usual civil case. In employment discrimination cases, the plaintiff must first prove a "prima facie" case of discrimination by proving: 1) that he or she is a member of a class protected by Title VII of the Civil Rights Act of 1964; 2) that the employer took an adverse employment action against him or her; 3) that he or she was qualified for the job or performing adequately; and 4) that similarly situated people outside the protected class were treated differently. The employer must then provide evidence, although not prove, that its adverse employment action was motivated by a legitimate nondiscriminatory reason. Once the employer has produced this evidence, the plaintiff must prove that the reason articulated is only a pretext for discrimination. The word "pretext" generally is understood to mean a lie. Recent developments in how to analyze the pretext prong of the balancing test illustrate the difficulty employment discrimination poses to the law. This Article will outline the analytical background of employment discrimination cases. It will then describe the U.S. Supreme Court's decision in St. Mary's Honor Center v. Hicks, which was intended to resolve a dispute in the lower courts over how to analyze the pretext prong of the balancing test. This Article will then describe the effect of St. Mary's Honor Center and the new dispute it created in both federal and state courts. The weaknesses in one approach adopted under St. Mary's Honor Center will be highlighted because that approach was used to alter employment discrimination cases brought in Illinois under the Illinois Human Rights Act, so that employers had an unfair advantage in employment discrimination cases. Finally, this Article will demonstrate that the Supreme Court's recent decision in Reeves v. Sanderson Plumbing Products, Inc., which clarified its decision in St. Mary's Honor Center, should help the Illinois Courts and others restore the proper balance to employment discrimination law.