Massachusetts Law Review

Shifting Through the Burdens: a Pretext for Clarification - A Study of the Changing Burdens of Proof in Discrimination Cases

Alexa Abowitz
C. Alexa Abowitz is an associate at Gadsby Hannah, LLP in the Employment and Litigation Group. She practices extensively in the fields of civil rights and education law. Abowitz holds both a B.A and an M.S.Ed. from the University of Pennsylvania and a J.D. from Villanova University School of Law.


The words of the anti-discrimination statutes are, by now, common and familiar rhythms,but the levels and kinds of proof required for a plaintiff to state a case under them continue to be the source of much debate. The Supreme Judicial Court's recent decisions in Abramian v. President and Fellows of Harvard College1 and Lipchitz v. Raytheon Co.2 have rekindled this debate in Massachusetts and added more questions than answers to the maze of analysis in employment discrimination cases. Those decisions and others have addressed both the requirements and the scope of the McDonnell Douglas analysis.3 In the "pretext" arena, the Supreme Judicial Court confirmed that Massachusetts is a "pretext only" jurisdiction, but then stripped away a substantial amount of clarity with respect to what that actually means. The Supreme Judicial Court has also narrowed the scope of the McDonnell Douglas analysis and pronounced that courts should rely on some other formula for fashioning jury instructions in discrimination cases.

This article will review several cases, both federal and Massachusetts, that are among the high points of the development of the McDonnell Douglas analysis. After that historical review, the article will concentrate on recent Massachusetts cases and their effects on the shifting of burdens in discrimination cases.

The Impossible Burden and the Effects of the Shift

Title VII of the Civil Rights Act of 1964, as amended, states as follows:

It shall be an unlawful employment practice for an employer -

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment, because of such individual's race, color, religion, sex, or national origin, or

(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.4

("Title VII").

The corresponding Massachusetts state law covers additional protected classes, but contains similar prohibitions, making it unlawful:

For an employer, by himself or his agent, because of the race, color, religious creed, national origin, sex, sexual orientation, which shall not include persons whose sexual orientation involves minor children as the sex object, genetic information, or ancestry of any individual to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment, unless based upon a bona fide occupational qualification.5

("Chapter 151B").

Not surprisingly, a plaintiff in an employment discrimination case must prove that he or she is the victim of unlawful discrimination. Only in the rarest of cases, however, would a plaintiff be able to present direct evidence of discrimination. In other words, for example, without any evidence that anyone responsible for the decision ever wrote, said or even thought that she should not get the job because she is female, Mary would have to prove that she did not get the job because she is female. In effect, plaintiff would have all of the burden of persuasion, but none of the evidence. Obviously, this approach would make it extremely difficult for an employment discrimination plaintiff to succeed. It was, therefore, necessary to develop a mechanism of proof that would enable a plaintiff to make a case of discrimination without direct evidence, while preserving a defendant's right to know the allegations against it.

In McDonnell Douglas Corp. v. Green, the United States Supreme Court presented its solution to the dilemma - a three-step shifting of burdens of proof that ostensibly protected all interests.6 Under McDonnell Douglas, where plaintiff challenges an employment decision as discriminatory: (1) plaintiff has to state a very simple case, one that does not require direct evidence, then (2) defendant has to give a legitimate reason for the challenged employment decision. Once those two steps are complete, (3) plaintiff must prove that the reason offered by the defendant in step two is "a pretext for discrimination."7 Since its introduction, the McDonnell Douglas analysis has taken different forms and played different roles.

Despite this relatively simple formula, courts have viewed the requirements of the McDonnell Douglas analysis quite differently, some in ways that are arguably a departure from the original terms of the analysis. Although they are interpreting the same language, courts have diverged into (at least) two different camps concerning the plaintiff's required burden of proof: "pretext only" jurisdictions and "pretext plus" jurisdictions. In pretext only jurisdictions, plaintiffs need only prove that the employer's proffered reason for the adverse employment action was false, or a "pretext." In "pretext plus" jurisdictions, the plaintiff must prove that the employer's reason for the adverse employment action was a pretext and that discrimination was the real reason for the challenged employment action.

In addition, courts have also expanded the scope of the McDonnell Douglas analysis well beyond its original design. What began as a formula to protect the rights of plaintiffs who had no direct evidence has become an all-governing system of analysis for discrimination cases. While the McDonnell Douglas analysis was arguably conceived only to have an effect at the beginning stages of proof, courts soon expanded the scope of the analysis to assist them in assessment of evidence at all stages of the litigation, up to and including the jury instruction stage.

The Birth of Burden Shifting in Discrimination Cases: McDonnell Douglas Corp. v. Green

In McDonnell Douglas Corp. v. Green, the Supreme Court considered a case of race discrimination under Title VII.8 The Court recognized that it was a challenge for plaintiff to prove discrimination without direct evidence and adopted a mechanism to level the playing field.

Green, a McDonnell Douglas employee who had been laid off, took part in a series of civil rights demonstrations that substantially disrupted McDonnell Douglas operations.9 Shortly after the second demonstration, McDonnell Douglas advertised for employees in plaintiff's trade and Green applied for re-employment.10 McDonnell Douglas refused to rehire him because of his participation in the demonstrations.11 Green brought suit claiming that he had been fired because of his race and that McDonnell Douglas had refused to re-hire him in retaliation for what he claimed to be protected protest activities.12

Noting the "lack of harmony" in the lower court decisions, the Supreme Court gave its guidance with respect to the proof required in discrimination cases.13

1) Plaintiff must state a prima facie case of discrimination;14

2) defendant must proffer a legitimate reason for having taken the [subject] employment action; and

3) plaintiff must then prove that defendant's proffered reason was a "pretext for the sort of discrimination prohibited by Title VII."15

It is clear from the first iteration of the McDonnell Douglas analysis that "pretext" was not meant to stand alone, but was a part of the phrase "pretext for discrimination." This interpretation is buttressed by the Court's further evaluation of what evidence might be relevant to a showing of pretext, "McDonnell Douglas' treatment of Green during his prior term of employment, McDonnell Douglas' reaction, if any, to Green's legitimate civil rights activities, McDonnell Douglas' general policy and practice with respect to minority employment."16 Such information, while it might go to prove or disprove an employer's proffered reason, is more obviously necessary to determine "whether petitioner's refusal to rehire respondent in this case conformed to a general pattern of discrimination against blacks."17 All this evidence taken together would establish McDonnell Douglas' tendency to (or not to) discriminate. It would, however, seem significantly weightier than that necessary to prove only that the reason McDonnell Douglas had given for Green's termination was false.

Relying on McDonnell Douglas, Massachusetts Establishes Itself as a 'Pretext Only' Jurisdiction.

In Wheelock College v. Massachusetts Commission Against Discrimination, the Massachusetts Supreme Judicial Court ("SJC") considered a sex discrimination case under Chapter 151B.18 The SJC adopted the McDonnell Douglas analysis and established Massachusetts as a "pretext only" jurisdiction.19

Wheelock College refused to renew the contract of a female professor.20 She filed a complaint at the Massachusetts Commission Against Discrimination ("MCAD") claiming that she was the victim of sex discrimination.21 The matter went through hearing at the MCAD and the college appealed the MCAD's decision to the courts.22

A telling comment on the state of the law at the time, the MCAD's initial decision did not make a finding with respect to whether the professor had stated a prima facie case of discrimination. In fact, neither of the briefs filed before the SJC cited McDonnell Douglas nor made use of its analysis. The SJC took note of the confusion and "set forth [its] views concerning the . . . proof required . . . in discrimination cases."23

Like the Supreme Court before it, the SJC was motivated by the fact that "proof of unlawful discrimination rarely can be established by direct evidence. . . ."24 Thus, the SJC accepted the McDonnell Douglas analysis, with one change. In Massachusetts, a plaintiff can meet her burden of proof of unlawful discrimination in two ways. First, a plaintiff can succeed if she establishes a prima facie case and the employer offers an explanation 1) for which there is no reasonable support or 2) that is "wholly disbelieved (and hence is transparently a pretext). . . ."25 Second, a plaintiff can also succeed by "proving . . . that the employer's facially proper reasons given for its action . . . were not the real reasons for that action."26

Under the SJC's formulation of the McDonnell Douglas analysis, a discrimination plaintiff could succeed by proving a prima facie case and then relying on the defendant not to meet its burden, or, in the alternative, the plaintiff could adduce evidence that would allow the fact finder to find that defendant's proffered reason for its actions is false. The SJC did not require that the plaintiff prove the defendant's real motivation was unlawful discrimination. Although the SJC did not make an explicit pronouncement, Massachusetts was established as a "pretext only" jurisdiction.

The Court Relies on the McDonnell Douglas Analysis to 'Focus' the Evidence in a Discrimination Case

In Texas Dep't of Community Affairs v. Burdine, the Supreme Court considered a case of sex discrimination under Title VII.27 The Court revisited the McDonnell Douglas analysis and clarified its use in narrowing issues in the progression of the case.28

Burdine, while working for the Texas Department of Community Affairs ("TDCA"), applied for a vacant project director position.29 Around the same time the United States Department of Labor, which provided TDCA's funding and was dissatisfied with that agency's efficiency, notified TDCA that parts of its funding would be terminated.30 The TDCA director, assisted by Burdine, convinced the Department of Labor to continue its funding, contingent upon the hiring of a permanent project director and an overhaul of the staff in the division in which Burdine worked.31 The TDCA director hired a man from another division of the agency as project director.32 This individual then reduced the division's staff, firing Burdine and two other employees and leaving another male as the only professional employee.33 Shortly after she was fired, Burdine was re-hired by the TDCA, which assigned her to another division and paid her the exact salary she would have made had she been given the project director job.34 Burdine brought suit against the TDCA claiming that she had been discriminated against on the basis of her sex in violation of Title VII.35

The United States Court of Appeals for the Fifth Circuit, in overturning part of the decision rendered by the federal district court, held that a defendant at the second stage of the McDonnell Douglas analysis in a Title VII case must prove the existence of legitimate nondiscriminatory reasons for the subject employment action by a preponderance of the evidence.36 The Fifth Circuit also required that a defendant establish by objective evidence that those hired and/or retained in place of plaintiff were better qualified.

With regard to defendant's burden at the second stage, the Supreme Court disagreed with the Fifth Circuit. The defendant's burden at the second stage of the analysis is not onerous. A defendant meets its burden, if by admissible evidence, it proffers a reason for the challenged employment decision that "[raises] a genuine issue of fact as to whether it discriminated against the plaintiff."37

The Court also noted that the McDonnell Douglas analysis should operate to produce a progressively sharper inquiry into plaintiff's charge that he suffered an adverse employment action because of discrimination.38 There are myriad reasons why an employer might make an employment decision later alleged to be discriminatory, but a plaintiff cannot reasonably be expected to counter all of them. Thus, a stated prima facie case eliminates the most common: (1) the plaintiff was not qualified and (2) the employer was not hiring.39 In the first step, then, the plaintiff narrows the pool of legitimate reasons why he might have suffered the adverse employment action. By eliminating those most common reasons, a prima facie case gives rise to a presumption that the employment action was discriminatory.40

Defendant must then rebut that presumption by producing a legitimate reason for it to have taken the action of which plaintiff complains. This is a shifting of the burden of proof, not the burden of persuasion. "The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff."41 Nevertheless, defendant's proffered reason must raise a genuine issue of fact, which, if not countered, would warrant a decision for the defendant.42

If defendant meets its burden, the inquiry becomes more specific still. From myriad reasons that might justify an employment decision, the field has been narrowed to few, or even one. At this point, defendant will likely be relying on one or two reasons for its actions. The burden shifts back to plaintiff, who will continue to argue that those actions were discriminatory. In Burdine, the Court noted that at this juncture, plaintiff's burden to demonstrate that the proffered reason was not the true reason for the employment decision "merges with her ultimate burden of persuading the fact finder that she has been the victim of intentional discrimination."43

Burdine made clear that in federal court, McDonnell Douglas gave rise to a "pretext plus" standard requiring plaintiff to prove that defendant's proffered legitimate reason for its action was false, plus that discrimination was the real reason for the challenged action. This is not particularly remarkable, given the fact that the Supreme Court never really contemplated a "pretext only" standard. From the beginning, the Court required a plaintiff to prove that the challenged action was a "pretext for discrimination." This is consistent with the Burdine Court's statement that plaintiff's two burdens merge at the final stage of the McDonnell Douglas analysis: burden one, "pretext" and burden two, "for discrimination." 44 This confirms that the Court never moved from its pronouncement that it was the plaintiff who was required to prove discrimination.

The Court Clarifies Defendant's Burden of Proof at the Second Stage

In St. Mary's Honor Center v. Hicks, the Supreme Court considered a case of race discrimination under Title VII.45 In Hicks, the Court concentrated on the nature of the defendant's burden and the effect of its fulfillment on the McDonnell Douglas analysis.

Hicks worked for the Missouri Department of Corrections and Human Resources ("MDCHR") as a correctional officer at the St. Mary's Honor Center facility.46 He held one of six supervisory positions and had a satisfactory employment record.47 After the MDCHR underwent extensive supervisory changes, Hicks was subject to regular, increasingly severe disciplinary actions and was demoted. Finally, he was discharged for threatening his supervisor.48 The lower court held for St. Mary's because plaintiff had failed to prove that his race was the reason he was fired. The court of appeals reversed.49

The Supreme Court reversed, clarifying the defendant's burden of production. In order to meet its burden of production, a defendant must only adduce evidence that, when taken as true, supports the decision that there was a non-discriminatory reason for its action.50 The defendant's burden at this stage, as the Court also stated in Burdine, is one of production, not persuasion.51 Thus, an assessment of whether defendant has met its burden involves no issues of credibility.52 It is not the defendant's burden to persuade the fact finder, at this stage, that its proffered reasons were the actual reasons for the adverse employment action.

In the third stage, plaintiff must satisfy her ultimate burden of proving discrimination. Although the presumption of discrimination raised by the prima facie case drops after the second stage,53 the evidence established by the prima facie case does not. The (1) fact finder's disbelief of the reasons put forward by the defendant plus (2) the elements of the prima facie case can suffice to show intentional discrimination.54 Hicks goes on to note that "'[n]o additional proof of discrimination is required.'"55

There are some who argue that Hicks' pronouncement that the presumption of discrimination "drops from the case" after the second stage entirely negates the usefulness of that analysis. Even at that "last" stage of the case, a plaintiff is still required to prove unlawful discrimination, with or without direct evidence. So, while the McDonnell Douglas analysis may shepherd a plaintiff through the various dispositive motion stages of a case, once trial arrives, a plaintiff must still somehow find evidence of discrimination.

The SJC Makes a Strong Pretext Only Statement

In Blare v. Husky Injection Molding Systems Boston, Inc., the SJC considered an age discrimination case under Chapter 151B.56 The SJC left no question that Massachusetts was a pretext only jurisdiction.

In Blare, the plaintiff worked for Husky as a machine operator from 1984 until April 1992. He was fired at the age of 57and his duties were assumed by younger employees.57 For most of his tenure at Husky, Blare received no disciplinary warnings, but he did not dispute that his supervisor submitted such warnings in the final four months of his employment.58 Blare argued that Husky did not fire other workers who did not fall within the protected age class, but had similar discipline records. Husky moved for summary judgment, arguing that Blare's admission to the disciplinary notices meant he failed to prove that Husky's proffered reason for his termination was a pretext.59 The SJC set the stage with its statement, "the issue in this case is what evidence the plaintiff is required to produce at the third stage in the order of proof in discrimination cases to clear the summary judgment hurdle."60

This led the SJC into a discussion of the difference between "pretext only" and "pretext plus." The SJC stated, "Massachusetts is a pretext only jurisdiction."61 In Massachusetts, "once a plaintiff has established a prima facie case and further shows either that the employer's articulated reasons are a pretext or by direct evidence that the actual motivation was discrimination, the plaintiff is entitled to recovery."62 A plaintiff may avoid summary judgment by stating a prima facie case and then offering evidence either that the defendant's reason for the employment action is false or that the real reason for the employment action is discrimination.63

Blare established that Massachusetts was among the strictest pretext only jurisdictions. It ostensibly required judgment for the plaintiff upon proof that the defendant's reason for the challenged employment action was false. This particular McDonnell Douglas formula shifted the burden of persuasion to the defendant to prove that its reason was true, and indeed, arguably compelled judgment for plaintiff regardless of whether the plaintiff had actually suffered discrimination.

Massachusetts Moves Away from Strict Pretext Only

In Abramian v. President and Fellows of Harvard College, the SJC considered a national origin discrimination case under Chapter 151B.64 The SJC moved away from its strict statement of pretext only in Blare to one that left the trier of fact with more freedom to decide, even where plaintiff met the burdens set forth in Blare.

Abramian worked at Harvard as a full-time security guard.65 After a supervisory change, plaintiff allegedly suffered harassment - including more severe discipline for lesser transgressions than his American counterparts and ethnic slurs - over the course of three years.66 Abramian was ultimately terminated for engaging in, although he allegedly did not start, an altercation with a part-time guard.67 Subsequent to Abramian's termination, the part-time guard was promoted to full-time status. Abramian sued Harvard claiming that he had been harassed and ultimately terminated because of his national origin.68

At trial, the special verdict form contained the following question, denoted as question A1, "Did Harvard College discharge Abramian because of his national origin?" On the second day of jury deliberations, the foreperson submitted this question to the judge, "We are confused by your instructions. If we believe that Harvard's rational[e] for firing Mr. Abramian is a pretex[t], are we therefore bound to answer 'yes' to question A1?" After conferring with all counsel, and over Harvard's objection, the judge sent the following written reply. "The answer to your question is yes." Harvard appealed.69

The SJC reiterated the burden shifting analysis and agreed that, at the third stage, the employee must show that the basis of the employer's decision was unlawful discrimination.70 The SJC then retreated from the strict pretext only position taken in Blare, and held that the jury is stripped of its fact-finding role by an instruction that compels a decision for plaintiff upon a finding that the defendant's proffered reason is false.71

The court went on to further define the role of the shifting burdens of proof at various stages of trial. Evidence that an employer's proffered reason for its action is false is sufficient to give rise to an inference that plaintiff suffered illegal discrimination.72 That inference, together with the elements of the prima facie case, combine to defeat a motion for directed verdict and are sufficient to allow, but do not compel the jury to return a verdict for the plaintiff.73 The employer still has an opportunity to show that the allegedly discriminatory action was taken for still another reason or that there was no discriminatory intent.74

Despite the SJC's insistence that Massachusetts remained a pretext only jurisdiction, it is interesting to compare Abramian's "pretext only" language with the "pretext plus" language in Hicks. Compare Abramian,

Evidence that the employer's reasons are untrue gives rise, therefore, to an inference that the plaintiff was a victim of unlawful discrimination. That inference, together with the elements described in [the prima facie case] . . . provide sufficient basis for the jury to return a verdict for the plaintiff.75

to Hicks,

The factfinder's disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination. Thus, rejection of the defendant's proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination . . . "[n]o additional proof of discrimination is required."76

There does not appear to be an appreciable difference between the two. The difference may now be only in name.

A Shifting of Perspective

In Lipchitz v. Raytheon Co., the SJC considered a sex discrimination case under Chapter 151B.77 The SJC made clear that "pretext" is not what a plaintiff has to prove, but rather, a way in which a plaintiff might establish the elements of a discrimination case.

Lipchitz began work for Raytheon in 1975 as a physician in the medical department of Raytheon's largest plant.78 She was eventually promoted to manager of that department. She received favorable performance evaluations, regular raises, bonuses and stock options and expressed a desire to move into a corporate position - corporate medical director (the "CMD").79 Eventually, despite Lipchitz' known interest in the position, when the CMD retired, Raytheon replaced him with another male who had been working one day a week at Raytheon.80 Lipchitz brought suit, claiming that she had been denied the promotion because of her gender.81

Raytheon presented several reasons for its refusal to promote Lipchitz: (1) she had had difficulties with the CMD and other managers; (2) her superiors perceived her as unwilling to take on extra work without additional compensation; and, (3) she was not perceived as a team player.82 This testimony was corroborated by documents produced by both parties.83 In addition, Raytheon indicated that it had been waiting for an opportunity to restructure the medical department.84

The SJC first considered the lower court's denial of Raytheon's motion for directed verdict.85 The court held that Lipchitz had adduced sufficient evidence from which the jury might have found that Raytheon's reasons for denying her the CMD job were false. Such a finding would allow the jury to return a verdict for Lipchitz, but it would not require that finding, and thus, the lower court was right to deny Raytheon's motion for directed verdict.86

The SJC focused, however, on the difference between the elements that a plaintiff was required to prove and the way those elements might be proved.87 Raytheon argued that the judge should have instructed the jury that Lipchitz had the duty to prove that Raytheon's proffered reasons for its decision were a "pretext for discrimination."88 Lipchitz disagreed, claiming that Massachusetts is a "pretext only" jurisdiction and, as such, Raytheon's requested instruction would have been an incorrect statement of the law.89 The SJC noted that Massachusetts did not require a plaintiff to prove both that the employer's given reason for the adverse action was false and that the false reason was given to conceal a discriminatory animus, but that plaintiff retains the ultimate burden of persuasion with respect to unlawful discrimination.90

Instead of relying on the McDonnell Douglas analysis, the SJC returned to the elements stated in Chapter 151B.91 The terms of Chapter 151B "set[] out four elements: membership in a protected class, harm, discriminatory animus, and causation."92 In indirect evidence cases, discriminatory animus can be inferred from the plaintiff's proof that defendant's proffered reason for its action is false, but this does not mean that plaintiff is relieved of her burden of persuasion.93 The SJC emphasized that "pretext" was a way to prove discrimination in indirect evidence cases, not what a plaintiff had to prove to succeed.94

Lipchitz is also instructive with respect to the causal element of a discrimination claim. With respect to indirect evidence cases, a plaintiff must prove that the defendant's discriminatory animus was the "determinative cause" of its adverse employment action.95 In other words, plaintiff must prove that defendant's discriminatory animus "contributed significantly to the adverse employment action," that the animus was a "material and important ingredient in causing the adverse employment action."96

The SJC then steered its analysis back toward more familiar ground. A plaintiff must prove "causation," but a plaintiff does not have to prove that discriminatory motive is the only reason for the action. Nor does plaintiff have to disprove all of defendant's proffered explanations for its actions. Plaintiff meets her burden by establishing a prima facie case and persuading the fact finder that it is more likely than not that at least one of defendant's reasons is false.97

The court closed by noting that jury instructions based on the McDonnell Douglas formula were "problematic" and encouraged trial judges to focus on the elements set forth in the statute.98

The Shifted Perspective: "Pretext Only-Light"

In Weber v. Community Teamwork, Inc., the SJC considered a sex and sexual orientation discrimination case under Chapter 151B.99 Weber states the proof requirements in statutory terms and makes the point that a plaintiff must prove both that the defendant had a discriminatory animus and that that animus was the determinative cause of the action of which she complains.

Weber was a long-term employee of Community Teamwork, Inc. ("CTI") who discovered and blew the whistle on the executive director's mishandling of CTI's funds.100 Weber applied for the executive director position, which she did not get, but was appointed director of CTI's housing and community development department.101 The facts in Weber are somewhat similar to those in Burdine. CTI was financially troubled and not making good use of the funding it was receiving from another commonwealth agency, and its relationship with that agency had become strained.102 The housing department, which Weber headed, was a particular focus of this strain.103 The new executive director, hired because of his relationship with the funding agency, determined that he had no choice but to terminate Weber, which he proceeded to do, without any explanation.104 Weber filed suit claiming that both CTI's failure to promote her and its termination of her employment were evidence of discrimination on the basis of sex and sexual orientation.105

The lower court held against Weber on her failure to promote claim, stating its belief that CTI had, as it argued, made its hiring decision based on its belief that the successful candidate would be better able to repair its relationship with its funding agency.106 Weber claimed that that holding could not be squared with certain other of the court's findings, namely that Weber was "eminently more qualified for the executive director position," that a "sexist attitude prevailed at CTI" and that it was "common knowledge" that Weber was a lesbian.107 Weber argued that those findings should have required the judge to conclude that CTI's reason for hiring a man to fill the executive director position was a pretext.108

The SJC agreed with the lower court's holding and characterized Weber's burden as "proving that the defendants' failure to promote her constituted unlawful discrimination."109 Thus, the SJC reasoned, even if CTI's proffered reason for not hiring Weber was not the real reason for the employment decision, the court would have still been permitted to conclude that CTI had another, nondiscriminatory, reason for its action.110 Had the court so concluded, plaintiff would have failed in her burden to prove that a discriminatory animus was the determinative cause of CTI's actions, even though she had proved CTI's proffered reason false. In other words, even if plaintiff jumps through all necessary hoops, then, "pretext only light" gives the fact finder the chance to find against her.

In Chief Justice for Administration and Management of the Trial Court v. Massachusetts Commission Against Discrimination,111 the SJC considered a case of sex discrimination under Chapter 151B. In Trial Court, the SJC reiterated its position that, even if defendant's proffered reasons in stage two are legitimate, a fact finder can still decide that discrimination was the cause of the challenged employment decision.

In Trial Court, two women, each of whom had been employed by the Hampden County Superior Court Clerk's Office for 20 years and each of whom had acted as a deputy clerk, sued the trial court for failure to promote them, officially, to deputy clerk positions.112 Instead of promoting the two plaintiffs, the clerk at the time hired two men, neither of whom had ever worked in a clerk's office, but both of whom had participated in the clerk's campaign.113 The women filed charges of discrimination with the MCAD. The Trial Court argued that the women had been denied the promotions because they lacked sufficient familiarity with the job. In addition to that reason, the MCAD also noted that both men had been active in the clerk's campaign and both possessed educational and managerial backgrounds that both plaintiffs did not.114 The MCAD found for the women.115 The Trial Court appealed to the Superior Court, which held that the MCAD commissioner had an obligation to make specific findings with respect to each of defendants' proffered legitimate reasons. Because the commissioner had not done so, the Superior Court remanded the matter to the MCAD.116 The SJC transferred the matter on its own motion.117

In this version of "pretext only light," the court endorsed the fact finder's decision for the plaintiff. The SJC noted that there was no need for the commissioner "explicitly to reject the nondiscriminatory reasons ultimately proffered by the [defendant] because a violation of G.L. c. 151B may still occur even if those reasons played some part in [the clerk's] decision."118 Thus, even if a defendant offers legitimate reasons, and even if those reasons played a role in the challenged employment decision, a fact finder is free to hold for plaintiff.

The Changed Role of the Burden Shifting Analysis

The SJC's decision in Lipchitz reins in "pretext" in two ways. First, it returns pretext to its role as a method of proof. "Pretext" is not now (and arguably was never supposed to have been) an element of a discrimination case, but rather a vehicle by which a plaintiff could prove those required elements. It is as the Lipchitz court stated, a kind of evidence.

Second, Lipchitz clarifies those stages of the case in which the burden shifting analysis can be relied upon. Even after Lipchitz, the burden shifting analysis remains useful to determine whether a party has adduced sufficient evidence to graduate to the next level of case, prior to trial. A plaintiff who states a prima facie case can survive a motion to dismiss. A defendant who provides, via admissible evidence, a non-discriminatory reason for its action can survive a motion for summary judgment. A plaintiff who sets out evidence that defendant's reasons were false can likewise survive a motion for summary judgment and when that evidence is admitted can survive a motion for directed verdict, but is not necessarily entitled to judgment.

When the case reaches the instruction stage, in light of Lipchitz, the burden shifting analysis does actually drop from the case. Then, the fact finder is left to review the elements of a discrimination claim and hang upon them that evidence that was produced pursuant to the burden shifting analysis.

Is Post Lipchitz Pretext Only Still Pretext Only? - Back to Square One

In most discrimination cases, a plaintiff has no direct evidence of an employer's discriminatory intent. Nevertheless, anti-discrimination law requires a plaintiff to prove that he or she was subject to unlawful discrimination. If we accept that the point of McDonnell Douglas is to find some way of allowing plaintiff to prove a vital element of his or her case with extremely limited evidence, then it is clear that the lone McDonnell Douglas iteration that effects this purpose is a pure pretext only standard. Otherwise, the burden, unchanged by all that shifting about, returns squarely and firmly to plaintiff's shoulders.

The pretext only "light" as Massachusetts has now adopted it, perhaps holds this proof problem in abeyance until it comes time to charge the jury, but it does not eliminate it. Furthermore, can an analysis that does not require (but instead, merely permits) a decision for the plaintiff, where he or she has proved the defendant's reason false, be anything other than pretext plus? Even if it goes by the name "pretext only," a standard that requires plaintiff to prove that discrimination was the real reason for a defendant's challenged action (and does not offer any assistance in that process) recreates the very problem the pretext analysis was supposed to solve, and returns a plaintiff to "square one." Under the "pretext only light" standard, plaintiff, without direct evidence, can theoretically get all the way to the jury and then lose simply because he or she has no direct evidence. If the problem is, in fact to be ameliorated, the evidence that plaintiff adduces throughout the case must "count" for something at the end. If, at the close of proof a plaintiff has proved defendant's reason false, but must present still additional evidence, then the shifting of burdens did not effectively lessen the onus on an indirect evidence plaintiff. He or she still has to somehow find direct evidence of discrimination thus - square one.

In Massachusetts, pretext only now means that a plaintiff must prove unlawful discrimination, but may do that with a combination of a proof of pretext and the prima facie case. It is the may that may wind up reducing this formula's effectiveness as a pretext only rule. If the fact finder does not have to find for plaintiff, it will be interesting to see what happens on the - almost certain - appeal in the case where they do not so find. Will there be other evidence required of plaintiff? Will a defendant have the burden of proving that it did not discriminate?

One thing is sure. We will continue to face discrimination cases and these doctrines will continue to develop, befuddle and evolve to assist us in the fairest, most just administration of the law.

End Notes

1. 482 Mass. 107 (2000).[back]

2. 484 Mass. 493 (2001).[back]

3. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).[back]

4. 42 U.S.C. § 2000e-2(a).[back]

5. Mass. Gen. Laws ch. 151B, § 4.[back]

6. McDonnell Douglas, 411 U.S. at 800-807.[back]

7. Id. at 802-03.[back]

8. Id. at 794, 797.[back]

9. Id. at 795.[back]

10. Id. at 796.[back]

11. McDonnell Douglas, 411 U.S. at 796.[back]

12. Id.[back]

13. Id. at 801-02.[back]

14. For the purposes of a race discrimination case, a plaintiff can establish a prima facie case by proving: (1) that he belongs to a racial minority; (2) that he applied and was qualified for a job for which the employer was seeking applicants; (3) despite his qualifications, he was rejected; (4) the position remained open and the employer continued to seek applicants. McDonnell Douglas, 411 U.S. at 802 n. 13.[back]

15. Id. at 804.[back]

16. Id. at 804-05.[back]

17. Id. at 805.[back]

18. 371 Mass. 130 (1976).[back]

19. Id. at 138-39.[back]

20. Id. at 131.[back]

21. Id.[back]

22. Id. at 131-32. Mass. Gen. Laws ch. 151B § 6 allows a respondent to challenge an MCAD decision beginning with an appeal to the Superior Court.[back]

23. Id. at 137.[back]

24. Id.[back]

25. Wheelock, 371 Mass. at 138.[back]

26. Id. at 139.[back]

27. 450 U.S. 248 (1981).[back]

28. Id.[back]

29. Id. at 250.[back]

30. Id.[back]

31. Burdine, 450 U.S. at 250.[back]

32. Id. at 251.[back]

33. Id.[back]

34. Id.[back]

35. Burdine, 450 U.S. at 251.[back]

36. Id. at 252.[back]

37. Id. at 254.[back]

38. Id. at 255-256.[back]

39. Id. at 254.[back]

40. Burdine, 450 U.S. at 254.[back]

41. Id. at 253.[back]

42. Id. at 256.[back]

43. Id.[back]

44. Id.[back]

45. 509 U.S. 502 (1993).[back]

46. Id. at 504.[back]

47. Id. at 505.[back]

48. Id.[back]

49. Id. at 508.[back]

50. Hicks, 509 U.S. at 509.[back]

51. Burdine, 450 U.S. at 255.[back]

52. Hicks, 509 U.S. at 509.[back]

53. Id. at 511.[back]

54. Id.[back]

55. Id.[back]

56. 419 Mass. 437 (1995).[back]

57. Id. at 438-39.[back]

58. Id. at 438.[back]

59. Id. at 439.[back]

60. Id. at 441.[back]

61. Blare, 419 Mass. at 443.[back]

62. Id. at 444.[back]

63. Id. at 445.[back]

64. 432 Mass. 107 (2000).[back]

65. Id. at 110.[back]

66. Id. at 111.[back]

67. Id. at 113.[back]

68. Abramian, 432 Mass. at 108.[back]

69. Id. at 115.[back]

70. Id. at 117.[back]

71. Abramian, 432 Mass. at 118.[back]

72. Id.[back]

73. Id.[back]

74. Id.[back]

75. Abramian, 432 Mass. at 118.[back]

76. Hicks, 509 U.S. at 511 (quoting Hicks v. St. Mary's Honor Center, 970 F.2d 487, 493 (8th Cir. 1992)).[back]

77. 434 Mass. 493 (2001).[back]

78. Id. at 495.[back]

79. Id. at 495-96.[back]

80. Id. at 496-97.[back]

81. Id. at 494.[back]

82. Lipchitz, 434 Mass. at 496-97.[back]

83. Id. at 497.[back]

84. Id.[back]

85. Id. at 498.[back]

86. Lipchitz, 434 Mass. at 498-99.[back]

87. Id. at 500-01.[back]

88. Id. at 499.[back]

89. Id. at 499-500.[back]

90. Id.[back]

91. Lipchitz, 434 Mass. at 502-03.[back]

92. Id. at 502.[back]

93. Id.[back]

94. Id.[back]

95. Id. at 504.[back]

96. Lipchitz, 434 Mass. at 506, n.19.[back]

97. Id. at 507.[back]

98. Id.[back]

99. Weber v. Community Teamwork, Inc., 434 Mass. 761 (2001).[back]

100. Id. at 765.[back]

101. Id. at 766.[back]

102. Id. at 767.[back]

103. Id. at 770.[back]

104. Weber, 434 Mass. at 771.[back]

105. Id. at 762-63.[back]

106. Id. at 768.[back]

107. Id.[back]

108. Weber, 434 Mass. at 768.[back]

109. Id.[back]

110. Id.[back]

111. 439 Mass. 729 (2003).[back]

112. Id. at 731[back]

113. Id.[back]

114. Id. at 732.[back]

115. Id. at 731.[back]

116. Trial Court, 439 Mass. at 731.[back]

117. Id.[back]

118. Id. at 732.[back]

©2014 Massachusetts Bar Association