Late last month, the Massachusetts Supreme Judicial Court issued a decision addressing a plaintiff’s evidentiary burden in employment discrimination cases brought under the Massachusetts anti-discrimination law, Chapter 151B. Breaking with precedent under federal anti-discrimination law, the SJC held in Bulwer v. Mount Auburn Hospital that a plaintiff employee can defeat a motion for summary judgment by offering evidence that the defendant employer’s stated reason for its allegedly discriminatory action was false. In other words, an employee does not have to offer evidence showing that the true reason for the employer’s action was in fact unlawful discrimination. The decision further confuses the burdens of proof at play in discrimination cases and has the potential to make summary judgment motions harder for employers to win.
Understanding the significance of the SJC’s decision requires a quick summary of the burdens of proof in employment discrimination cases. Under both federal and state law, plaintiffs can meet their burdens of proof through either direct or circumstantial evidence. Because employees rarely have direct evidence of discrimination, most plaintiffs attempt to prove their claims through circumstantial evidence. In those cases, both federal and Massachusetts courts apply a three-step burden-shifting framework first articulated by the U.S. Supreme Court. First, the plaintiff must establish a prima facie case of discrimination, the elements of which vary depending on the nature of the plaintiff’s claim. If the plaintiff meets this burden, a presumption of discrimination arises. The burden then shifts to the defendant to rebut the presumption by articulating a legitimate, non-discriminatory reason for its adverse employment action against the plaintiff. If the defendant meets its burden, the presumption disappears and the burden then shifts back to the plaintiff to prove that the defendant’s proffered reason for its action is pretext for unlawful discrimination.
At issue in Bulwer was what evidence is required to establish pretext, and at summary judgment, who has the burden to show it. Under federal law, a plaintiff seeking to defeat a motion for summary judgment must provide evidence not only that the employer’s reason was false but also that the real reason was unlawful discrimination. In Bulwer, however, the SJC held that, under Chapter 151B, a plaintiff does not need to offer evidence that the real reason for the defendant’s action was unlawful discrimination to survive summary judgment. A plaintiff simply needs to offer evidence that the employer’s stated reason is false; he or she does not need to connect that false reason to some discriminatory animus on the defendant’s part. So long as he shows the defendant’s stated reason was untrue, the case proceeds to trial. However, the Court did not alter a plaintiff’s ultimate burden of proving that defendant’s proffered reason is pretext for unlawful discrimination.
The SJC’s makes the summary judgment process a lot more confusing when it comes to Chapter 151B claims. Under federal law, an employee cannot rely on the purported falsity of the employer’s stated reason alone to defeat a motion for summary judgment. An employer can still prevail if the employee cannot offer evidence suggesting that the real reason for the employer’s action was unlawful discriminatory animus. This is a common occurrence in discrimination cases: an employee can poke holes in the employer’s rationale for terminating his or her employment, but cannot show that the real reason for the termination was unlawful discrimination. Under Chapter 151B, however, a plaintiff can avoid summary judgment simply by offering evidence that the employer’s stated reason is false, regardless of whether he or she can ultimately prove that discrimination was the real reason for the employer’s actions. The plaintiff still must prove that the employer’s proffered reason was pretext for discrimination, but that is now an issue that will be decided at trial rather than at summary judgment.
Nevertheless, employers can easily minimize any negative impact of the Bulwer decision. Many times, employers get into trouble in employment discrimination cases not because they unlawfully discriminated against an employee, but because they mislead employees about the true motivations for their decisions or offer multiple (and often conflicting) rationales for their actions. Often, employers are coming from a good place. After all, it is much easier to tell an employee that he is being laid off than tell him he is being fired for poor performance. But, if employers are straightforward with employees at the time of an adverse employment action, employees will have less of an opportunity to present evidence calling the veracity of the employer’s reason into question. The truth may be harsh at the time, but it will be less painful than having to contend with an employment discrimination trial down the line.