ここでは、「Pretext」 に関する記事を紹介しています。

What is the fate of the McDonnell Douglas pretext framework?

I would argue that the pretext framework still has a role at Summary Judgment, but only just.

The pretext framework allows the court to eliminate "the most common nondiscriminatory reasons for the plaintiff's rejection." Tex. Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 250 (1981). In other words, the three step framework can be used to judge whether the parties have met their respective burdens of production to create an issue of genuine material fact. Thus, in a sex discrimination case:
  1. The plaintiff makes the initial showing: she is a woman; she was qualified to hold the position; despite her qualifications, she received an adverse action or decision; and after the decision, the position remained open or was filled by an employee with similar or inferior qualifications. McDonnell Douglas, 411 U.S. at 802. The plaintiff thereby creates a presumption of discrimination.
  2. The defendant makes its initial showing: it produces evidence of a legitimate, nondiscriminatory reason for its decision, and thereby rebuts the presumption, leaving the actual fact of discrimination in dispute.
At this point, McDonnell Douglas "bursts" and goes away (see question at the bottom of page 10; Justice Breyer, perhaps?). Look also at the colloquy that follows.

Of course, I don't claim that you can extract something like this from an oral argument transcript as a holding, but I think it is persuasive in that it shows the thinking of one of the majority justices in Desert Palace. And of course, we have other dicta that say that McDonnell Douglas was never meant to be rigid, mechanistic, or ritualistic. Furnco Const. Corp. v. Waters, 438 U.S. 567, 577 (1978).

In other words, McDonnell Douglas is one way that a plaintiff can plead his or her case. It gives a nice schema for creating a prima facie case of discrimination, which, once rebutted, becomes a factual matter.

This is not to say that some exceptionally weak or strong cases could not be eliminated on summary judgment. It just means that judges have to go back to that old standby, discretion, for evaluating when the evidence in a particular case is so weak or strong that the judge can decide the case as a matter of law. Consistent with Desert Palace, this is just a return to normal rules of civil procedure and litigation.

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