It's time to revise your jury instructions

The Court of Appeals has issued a remarkable opinion that cautions the trial courts that they should not charge juries in employment discrimination cases that the plaintiff must show the defendant's stated reason for his termination or demotion was a pretext. Instead, it is enough to simply charge the jury that the plaintiff bears the burden of showing that discrimination played a role in the adverse employment action.

The case is Henry v. Wyeth Pharmaceuticals, decided on August 4. This case is significant also for its holdings on the right way to charge the jury in a retaliation case as well as the legal standard governing motions in limine when the plaintiff wants to introduce evidence that other supervisors made racial comments at work. But the Second Circuit leaves its most provocative ruling for the end of the decision. While the Court emphasizes that the pretext discussion is dicta, the Court of Appeals is sending us a message: the standard jury instructions are placing an unnecessary burden on plaintiffs.

The instruction in this case was typical of Title VII cases. Judge Conner told the jury the following (among other things):

If Wyeth satisfies its burden by presenting evidence to show a nondiscriminatory reason for its employment action or decision, you then proceed to the third step in the analysis, which is to determine whether plaintiff has satisfied you by a preponderance of the credible evidence that the reason offered by Wyeth for its decision or action is only a pretext or coverup for what was in truth a racially discriminatory motive. Thus, plaintiff must establish both that the reason advanced by Wyeth was false, and that the discrimination was a motivating factor in Wyeth’s decision or action.

Plaintiff's counsel had the judge then tell the jury that the defendant's reason does not have to be false in order for plaintiff to win. This is because the plaintiff can still win even if the employer does not offer a false reason. But the judge then told the jury that the plaintiff has to show that the reason is a pretext, i.e., made with conscious intent to deceive. In other words, a reason offered in "bad faith."

The Second Circuit (Leval, Parker and Pooler) says that the trial courts should not tell the jury that the plaintiff is required to show that the employer's articulated reason is "pretext." That word may confuse the jury and add to the plaintiff's burden of proof. In order to win the case, the plaintiff does not have to show the employer lied or intended to deceive. As Judge Leval says, "In proving a case under Title VII, following the defendant's proffer of a justification, a plaintiff need only show that the defendant was in fact motivated at least in part by the prohibited discriminatory animus. ... A plaintiff has no obligation to prove that the employer's innocent explanation is dishonest, in the sense of intentionally furnishing a justification known to be false. The crucial element of a claim under Title VII is discrimination, not dishonesty."

As an aside, the Court of Appeals suggested this very point years ago, in Fields v. OMRDD, 115 F.3d 116 (2d Cir. 1997). Everyone ignored Fields. The Second Circuit is reviving the point in Henry v. Wyeth.

If you handle discrimination cases, you are probably scratching your head. Don't the courts use the word "pretext" all the time in outlining the plaintiff's burden of proof? Yes, but the Second Circuit says that "pretext" may be "a shorthand for the more complex concept that, regardless of whether the employer's explanation also furnished part of the reason for the adverse action, the adverse action was motivated in part by discrimination." In other words, the employer is lying in not telling the jury that the plaintiff was fired for discriminatory reasons.

The Second Circuit also says that we may be throwing around the word "pretext" through a misunderstanding of dicta in Supreme Court opinions, including St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993), in which Justice Scalia stated that "a reason cannot be proved to be a 'pretext for discrimination' unless it is shown both that the reason was false, and that discrimination was the real reason." Similar language appears in Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). So what does this language really mean? According to the Second Circuit,

It seems clear from the discussion that what the Court meant by its reference to the falsity of the employer’s asserted justification was not intent to deceive, but inaccuracy or incompleteness resulting from the failure to include the fact of the discriminatory motivation. In context, it is amply clear that the import of the statements in both Burdine and St. Mary’s was not that plaintiff was required to prove the employer’s stated justification was asserted with intent to deceive or in bad faith. It was rather that no plaintiff could prevail without establishing, by a preponderance of the evidence, that discrimination played a role in an adverse employment decision.

While it helps plaintiffs if the jury is not always told that the plaintiff must establish that the employer's reason is pretext, I am not sure that taking out the word "pretext" always helps the plaintiff. It may help if the employer is not lying to the jury and the plaintiff has other evidence of discrimination. In that circumstance, then the "pretext" instruction does add to the plaintiff's burden. But in most cases, the plaintiff has to prove that management is lying about the reason for his discharge or demotion. Simply telling the jury that the plaintiff has to prove the defendant was motivated at least in part by discrimination does not provide the jury guidance in how to prove discrimination. Pretext is one way to do that ("Ladies and gentlemen of the jury, JobCo says it fired Joe Smith because he was a bad worker. That's not true, it's a pretext, it's false. Joe Smith had great performance evaluations!").

I guess you can still ask the trial court to explain how the plaintiff may prove discrimination, and pretext in the form of an intentional falsehood by the employer is one way to do it. The Second Circuit says that "we caution district courts to avoid charging juries to the effect that a plaintiff must show that the employer's stated reason for an adverse action was a 'pretext.'" (Emphasis mine). Throughout the opinion, the Court of Appeals frowns upon the notion that the plaintiff "must" always prove pretext in these cases. So the trial court is not required to charge on pretext. In some cases, the standard pretext instruction may not fit the case, as the Court of Appeals explains. But the Second Circuit's careful warning that that plaintiff is not required to establish pretext suggests that, in appropriate circumstances, the trial court could still charge that pretext is one way to prove discrimination.