Pretext After Bostock—Disproving One of the Employer’s Reasons is Enough

Authors

Robert S. Mantell, Powers, Jodoin, Margolis & Mantell LLP

Abstract

When an employer gives a pretextual reason for an employee’s termination, that falsehood can help prove that the true reason was discrimination. The dishonesty constitutes “affirmative evidence of guilt.” The trier of fact may “infer the ultimate fact of discrimination from the falsity of the employer’s explanation.” However, when an employer provides multiple reasons for firing an employee, there has been a split of opinion whether the plaintiff must disprove one or all of those reasons.

The Supreme Court’s recent discussion of multiple motives in Bostock v. Clayton County provides the tools to resolve this split and compels rejection of disprove-all-reasons. Bostock held that gender discrimination is actionable, even if the employer was motivated by other legitimate reasons, so long as gender was a but-for cause. A plaintiff need only show that the termination was based “in part” on a discriminatory motive and need not show that bias was the sole, or even the primary reason. Since plaintiffs need only show that bias was “in part” the reason for discharge, and can agree with employers that other lawful reasons contributed, it would be absurd to require plaintiffs to disprove the other reasons. Bostock’s recognition of multiple, independent, but-for reasons for an employment action, and rejection of a sole or primary reason standard, highlights in new ways the dysfunctional nature of the disprove-all-reasons test.

This Article discusses various errors and flaws in the disprove-all-reasons standard. Simply put, when a plaintiff can show that discrimination was one of the determinative reasons for an adverse employment action, there is no longer a need to disprove the other reasons. Social science confirms that bias is often expressed in the presence of other, valid factors that contribute to a decision. When a plaintiff disproves one of the employer’s but-for excuses, a jury should be permitted to infer that discrimination inhabits the same causal space that the employer ascribed to its false explanation. The jury is permitted to find that a false explanation was offered to obscure the presence of discrimination, even if other explanations are also offered.

Recommended Citation

Robert S. Mantell, Pretext After Bostock—Disproving One of the Employer’s Reasons is Enough, 28 Wash. & Lee J. Civ. Rts. & Soc. Just. 65 (2022).
Available at: https://scholarlycommons.law.wlu.edu/crsj/vol28/iss1/4