The Demise of Circumstantial Proof in Employment Discrimination Litigation: St. Mary's Honor Center v. Hicks, Pretext, and the "Personality" Excuse

Mark S. Brodin, Boston College Law School


Since the enactment of Title VII of the Civil Rights Act of 1964 the courts have struggled to define the burdens of proof surrounding the central issue of an employer's alleged discriminatory intent. What evolved was the McDonnell Douglas framework, premised upon established concepts of circumstantial proof and inference. The approach permits plaintiffs lacking direct proof to nonetheless establish a violation of the Act by proving that the employer's explanation of the challenged decision was pretextual. In St. Mary's Honor Center v. Hicks, a closely-divided Supreme Court substantially altered the McDonnell Douglas framework. Discrediting the reasons offered by the employer for its decision no longer suffices to establish a violation of Title VII. Rather, plaintiffs must somehow prove that the pretext was offered to hide discrimination, and not for some other motivation. Moreover, the trier of fact is permitted to construct its own explanation of the events even though that scenario was not offered by either party at trial. As a result, plaintiffs must be prepared to discredit stated and unstated non-discriminatory reasons for the employer's action. Professor Brodin criticizes the sharp move away from McDonnell Douglas and argues that it will distort the fact-finding process and deprive victims of bias of a meaningful opportunity to enforce their rights to equal employment opportunity.