Second Circuit Clarifies the Test for Disparate Treatment Discrimination
The U.S. Court of Appeals for the Second Circuit has issued a decision that seeks “to demystify” part of the well-established standard for proving disparate treatment discrimination under Title VII (i.e., that an employee has been treated less favorably than co-workers who do not share the same protected characteristic). In so doing, the Second Circuit has also made it easier for a plaintiff to establish such a claim.
In order to establish a disparate treatment claim, a plaintiff must provide either (1) direct evidence of discrimination or, (2) as is more common, circumstances giving rise to an inference of discrimination. As to the second situation, the Supreme Court articulated the applicable test for whether a plaintiff has shown sufficient evidence of discrimination to sustain a claim. The McDonnell Douglas framework first requires the plaintiff to establish a prima facie case by showing that (1) they are a member of a protected class; (2) they are qualified for the position; (3) they suffered an adverse action; and (4) there are circumstances giving rise to an inference of discrimination. If that showing is made, the burden shifts to the employer to articulate “some legitimate, nondiscriminatory reason” for the adverse action. The burden then switches back to the plaintiff to prove that the employer’s stated reason is a pretext for discrimination. Also of relevance to disparate treatment claims under Title VII, the employee need only show that discrimination was a “motivating factor,” meaning one of several reasons, and not the only reason for the adverse action.
Where the confusion has arisen is with regard to the third stage of the McDonnell Douglas framework. Traditionally, in order to establish pretext, plaintiffs were required to show that the employer’s stated reason was false and that the real reason was discrimination. However, as the Second Circuit has now clarified in Bart v. Golub Corp., “To satisfy the third-stage burden under McDonnell Douglas and survive summary judgment in a Title VII disparate treatment case, a plaintiff may, but need not, show that the employer’s stated reason was false, and merely a pretext for discrimination; a plaintiff may also satisfy this burden by producing other evidence indicating that the employer’s adverse action was motivated at least in part by the plaintiff’s membership in a protected class.”
Thus, the fact that the employer’s stated reason is true will not necessarily mean the claim fails; if discrimination is possibly also a reason for the adverse decision, the employee’s claim will not be thrown out before reaching a jury. This means that it will be easier for some plaintiffs to establish their claim of discrimination. Of course, this decision is binding only on employers in the Second Circuit (Connecticut, New York and Vermont). However, as the Second Circuit notes, it is consistent with decisions (albeit less clearly stated) in other Circuits, and may serve as persuasive guidance for the remaining Circuits going forward.
