The “Three-Stage Burden-Shifting Test” For Discrimination

What is the “three-stage burden-shifting test” for discrimination cases, and does it eliminate an employers’ ability to obtain a summary judgment?

Summary Judgment

Sandell v. Taylor-Listug, Inc., the court discussed how the “3 stage burden-shifting test” for discrimination cases is applied when a trial court is deciding a motion for summary judgment.  Black’s Law Dictionary defines summary judgment as a judgment granted on a claim about which there is no genuine issue of material fact and upon which the movant is entitled to prevail as a matter of law.  In an employment law context, what this means is that a trial court decides that the plaintiff-employee is unable to produce sufficient evidence upon which a jury could find that he/she was discriminated against, or that the employer’s rebuttal evidence establishes a legitimate, non-discriminatory reason for the employer’s actions upon which a reasonable trier of fact would have to find in the employer’s favor.

However, the Sandell court stated that the traditional three-stage burden-shifting test, as defined in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 , needed to be considered when applying the legal principles of a summary judgment motion.  The three-stage burden-shifting test was established because of the difficulty of proving discrimination claims since there rarely is direct evidence of intentional discrimination, and it is therefore typically proven circumstantially. 

Step-One

Step one of the test places the initial burden of establishing a prima facie case of discrimination on the plaintiff-employee. The purpose of requiring a prima facie case is to eliminate “patently meritless claims.” It is therefore a fairly light evidentiary burden, with only minimal evidence needed to infer discrimination.  In other words, the plaintiff-employee need only minimally establish the basic elements of his or her claim; specifically, present evidence that he or she is within a protected class, and provide some evidence that there was adverse action taken against the plaintiff-employee because he or she was within the protected class.

Step-Two

If the plaintiff-employee is able to establish the above, the case moves to step two, where the establishment of a prima facie case has raised a presumption of discrimination and the burden now shifts to the employer to rebut the presumption.  The rebuttal evidence must be sufficient to raise a genuine issue of fact from which a conclusion could be reached that the employer’s actions were for legitimate, non-discriminatory reasons.  In other words, the employer must show that the adverse action was taken for legitimate business reasons which had nothing to do with the plaintiff-employee being within the protected class.

Step-Three

If the employer is able to produce such rebuttal evidence, the case moves to step three, where the presumption of discrimination disappears and the burden shifts back to the plaintiff-employee.  The plaintiff-employee then has the opportunity to present evidence which attacks the employer’s proffered reasons as pretext, by demonstrating weaknesses, implausibilities,  inconsistencies or contradictions, in the proffered evidence, such that a reasonable fact finder could determine that the employer’s explanation was simply a cover-up of discriminatory intent.  Evidence of dishonest reasons for the adverse employment action, along with the elements of a prima facie case, may permit a finding of discrimination.  The plaintiff-employee may also offer other evidence of a discriminatory motive.  Ultimately, therefore, the burden lies with the plaintiff-employee.

However, the burden shifting test and the rules of a summary judgment are not consistent.  In fact, as the court notes, the three-part burden shifting test was established for use at the trial stage, not for a summary judgment.  Thus, keeping both of these legal principles in mind, the court found that in a discrimination claim, where a motion for summary judgment or other summary issue adjudication is made, the burden is going to ultimately rest with the moving party to negate their opponent’s right to prevail on the issues, unlike the three-step burden-shifting test. Therefore, if there is any evidence upon which a finding could be made, by a reasonable trier of fact, that the plaintiff-employee was discriminated against, then the motion for summary judgment should be denied. 

Based upon the Sandell case, it seems almost impossible for an employer to obtain a summary judgment in a discrimination case, unless the case is patently meritless on its face.  As the court noted, most discrimination cases are proven by circumstantial evidence. Since the credibility of the witnesses is often a factor, it is unlikely that there would be no triable  issues of material facts as a matter of law.  For example, if the plaintiff-employee establishes a prima facie case, and the employer can then shift the evidentiary burden back to the employee with evidence of non-discriminatory reasons, this in and of itself seems to raise a question of fact: whose version of the story is true?  Based upon the Sandell decision, employers should expect to face a trial with most discrimination lawsuits unless an early settlement can be achieved. Therefore, due to the huge legal costs associated with defending a discrimination lawsuit, especially if it involves more than one plaintiff, employers should be sure to implement and enforce anti-discrimination policies in the workplace.

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