'Pretext Plus' Most Consistent With Fairness

Published In Massachusetts Lawyer's Weekly (October 12, 1998 p. , 27 M.L.W. 294)

To the Editor:

Frederick T. Golder contended in his Viewpoint article ("'Pretext Only' Proper Standard For Bias Cases," Sept. 21) that the so-called "pretext only" rule is the appropriate standard for employment-discrimination cases.

In fact, his arguments demonstrate that the federal "pretext plus" rule that he denounces is the standard for liability most consistent with both fairness and American law as a whole.

Golder recites lengthy lists of "assumptions" and "facts" to support his claim that most employers are knowledgeable and cunning enough to create plausible pretexts in most instances in which they wish to illegally discriminate. Carried to its logical conclusion, this argument supports the imposition of a presumption that any adverse action by an employer against a member of a protected class was motivated by discrimination.

Such an approach is incompatible with the manner in which all other cases are tried. Indeed, Golder offers no explanation why disputes between employers and at-will employees outside the "protected classes" established by Title VII, ADEA, and Chapter 151B should not be entitled to the benefit of an identical presumption.

Massachusetts, like most states, adheres to the employment-at-will doctrine under which employment may be terminated at any time for any reason. The at-will doctrine ordinarily bars courts from acting "as super personnel departments, assessing the merits -- or even the rationality -- of employers' non discriminatory business decisions."

Golder fears that employers can always obtain summary judgment under the "pretext plus" standard by invoking any reasonable explanation for their actions which comes to mind. My experience -- like that, I assume, of many other lawyers representing employers -- is that plaintiffs in employment discrimination cases seek and obtain extensive discovery looking to undermine an employer's articulated reason for its adverse action.

Employees' counsel often discover evidence showing an employer acted for reasons other than those disclosed to the employee or asserted as a defense to a bias claim. When they do, summary judgment as to the absence of pretext becomes unavailable under the 1993 U.S. Supreme Court decision in St. Mary's Honor Center v. Hicks.

In practice, the "pretext plus" rule employed by federal courts under Blare v. Husky Inj. Molding Sys. Boston, Inc. to provide adequate protection to plaintiffs.

Laws creating private rights of action for the victims of employment discrimination serve an important public purpose. They should not, however, be interpreted in a manner which undermines other important rules of law, such as the at-will employment doctrine.

"Pretext plus" places the obligation of proving illegal activity upon plaintiffs who can employ discovery to uncover an allegedly biased employer's misstatements and actual intent. As such, the federal rule provides more than adequate protection to plaintiffs consistent with ordinary American trial practice.

Golder may contend that discrimination is so pervasive and so easily hidden as to require a reallocation of the burdens of proof and persuasion through the presumptive "pretext only" rule. Congress and state legislatures, should they believe those fears to be genuine, have the power to revise the manner in which the anti-discrimination laws are enforced.

Courts, however, should not do so in a manner which create unique rules of proof in employment discrimination cases absent clear legislative direction.

Edward R. Wiest
Boston

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