Pretext-Plus in the Second Circuit: Where It’s Been, Where It’s Going

Plaintiffs’ employment discrimination lawyers in the Second Circuit welcomed the Supreme Court’s decision in Reeves v. Sanderson Plumbing Products, 530 U.S. 133 (2000). A unanimous Court in Reeves held that, in most employment discrimination cases, the plaintiff may prevail at trial with a prima facie case of discrimination and evidence that the employer’s articulated reason for the adverse employment action was false. The Court framed the issue as follows:

In appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose. Such an inference is consistent with the general principle of evidence law that the fact finder is entitled to consider a party’s dishonesty about a material fact as “affirmative evidence of guilt.” Moreover, once the employer’s justification has been eliminated, discrimination may well be the most likely alternative explanation, especially since the employer is in the best position to put forth the actual reason for its decision. Thus, a plaintiff’s prima facie case, combined with sufficient evidence to find that the employer’s asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.

Reeves left open the possibility that, in some cases, even a prima facie case and evidence of pretext may not carry the plaintiff’s burden. But the Court made it clear this was the exception to the rule.

Read the rest of the article (at the New York State Labor and Employment Law Journal)