Employment Discrimination Defenses: Three Throwaways at Summary Judgment

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Advancing an employment discrimination case to trial often involves a hurdle known as summary judgment, which is governed by Rule 56 of the Massachusetts Rule of Civil Procedure and it’s federal corollary. Employers often rely on Rule 56, typically after the close of discovery, as a final attempt to dismiss an employment discrimination case and avoid the risk of trial. This is a watershed moment in the litigation.

As the U.S. Supreme Court made clear in Anderson v. Liberty Lobby, in considering an employer’s Motion for Summary Judgment, the employee’s evidence of discrimination “is to be believed, and all justifiable inferences are to be drawn in his favor.” In Reeves v. Sanderson Plumbing Products, the Supreme Court also cautioned that a judge “may not make credibility determinations or weigh the evidence” because these are jury functions. Rather, as articulated by the Massachusetts Supreme Judicial Court in Flesner v. Technical Communications, a “judge’s mere belief that the movant is more likely to prevail at trial is not a sufficient basis for granting summary judgment” in the employer’s favor and dismissing the case.

Finally, a court must deny the employer’s motion for summary judgment if a genuine dispute exists even on just one material fact. In the absence of such a dispute, which is rare in employment discrimination cases, the question before a court (per the Anderson and Flesner decisions) is not whether it “thinks the evidence unmistakably favors one side or the other, but whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented.”

With these principles in mind, employment discrimination cases are inherently ill-suited for dismissal at the summary judgment stage because issues of intent and state of mind typically predominate. Nevertheless, in filing for summary judgment, it’s not uncommon for employers to ask a judge to drawn inferences in their favor and present evidence that, although may be arguably favorable, clearly falls within the province of the jury.

Below are three throwaway arguments that employers have improperly relied upon at summary judgment to avoid trial:

1. License to Discriminate: “Judge, there’s no way the company discriminated against and wrongfully terminated Jane Smith because of her pregnancy. Look at all of these other pregnant workers who the company employs.”

  • Connecticut v. Teal: “It is clear that Congress never intended to give an employer license to discriminate against some employees on the basis of race or sex merely because he favorably treats other members of the employees’ group.”
  • Healy v. New York Life Insurance: “The very nature of disparate treatment cases focuses on the bias against an individual because of age, race or sex. Because such bias is irrational, it may not follow a consistent pattern.”

2. Neutral Pawn: “Judge, the company has a clear anti-discrimination policy and does not condone the behavior of the employees who allegedly told Jane Smith that it will be impossible for her meet the demands of her position and be a good mother. Even assuming these comments are true, which the company categorically denies, none of these employees made the ultimate decision to terminate Jane Smith.”

  • Trustees of Forbes Library v. Labor Relations Comm’n: “An employer should not be permitted to insulate its decision by interposing an intermediate level of persons in the hierarchy of decision, and asserting that the ultimate decision makers acted only on recommendation, without personal hostility toward protected activity.”
  • Cariglia v. Hertz Equipment Rental: “If the district court finds that Heard withheld exculpatory information about the booms and thus impermissibly tainted the decisionmaking process with his animus, Cariglia has shown that ‘[Heard’s] discriminatory animus contributed significantly to [Cariglia’s termination], that it was a material and important ingredient in causing it to happen.’”

3. Same Actor Inference: “Judge, the person who terminated Jane Smith had been on pregnancy leave during her employment with the company in years past. There’s no way she would engage in pregnancy discrimination. Did I mention the company also employs a bunch of happy, pregnant employees?”

  • Reid v. Google: “We take Google’s invitation to be no more than an attempt to use persuasive evidence as a guise for undisputed evidence. The argument that Rosing, over 50 years of age, would not discriminate against another person over 50 years old may prove effective (or not) in closing argument before a jury, but it is not an inference we will make on summary judgment.”
  • Wexler v. White’s Furniture: “By emphasizing that Schiffman was actually older than Wexler when he demoted Wexler, the district court was relying on the idea that one member of a group is unlikely to discriminate against another member of the same group. This inference has been explicitly rejected by the Supreme Court in the context of race and sex discrimination.”
  • Herrnreiter v. Chicago Housing Authority: “We do not agree with the defendant that this claim is blocked by the so-called ‘common actor’ presumption. When the same person hires and later fires the employee who claims that his firing was discriminatory, judges are skeptical, because why would someone who disliked whites, or Germans, or members of some other group to be working for him have hired such a person in the first place? It is misleading to suggest … that this skepticism creates a ‘presumption’ of non-discrimination, as that would imply that the employee must meet it or lose his case. It is just something for the trier of fact to consider.”
  • Kadas v. MCI Systemhouse: “[T]he relative ages of the terminating and terminated employee are relatively unimportant. For it is altogether common and natural for older people, first, to exempt themselves from what they believe to be the characteristic decline of energy and ability with age; second, to want to surround themselves with younger people; third to want to protect their own jobs by making sure the workforce is not too old, which might, if ‘ageist’ prejudice is rampant, lead to RIFs of which they themselves might be the victims; and fourth, to be oblivious to the prejudices they hold, especially perhaps prejudices against the group to which they belong.”
  • Stalter v. Wal-Mart: “Wal-Mart also argues that because the same person hired and fired Stalter, it is entitled to a presumption that the firing was not race-based. However, we have stated that the ‘same-actor inference is unlikely to be dispositive in very many cases.’”
  • Johnson v. Zema Systems: “The psychological assumption underlying the same-actor inference may not hold true on the facts of the particular case. For example, a manager might hire a person of a certain race expecting them not to rise to a position in the company where daily contact with the manager would be necessary. Or an employer might hire an employee of a certain gender expecting that person to act, or dress, or talk in a way the employer deems acceptable for that gender and then fire that employee if she fails to comply with the employer’s gender stereotypes. Similarly, if an employee were the first African-American hired, an employer might be unaware of his own stereotypical views of African-Americans at the time of hiring. If the employer subsequently discovers he does not wish to work with African-Americans and fires the newly hired employee for this reason, the employee would still have a claim of racial discrimination despite the same-actor inference. It is for these reasons that the same-actor inference is unlikely to be dispositive in very many cases.”
  • Danzer v. Norden Systems: “[T]he proposition that people in a protected category cannot discriminate against their fellow class members is patently untenable.”
  • Williams v. Vitro Services: “Evidence that the same actor both hired and fired the plaintiff, in some circumstances, may help to convince a jury that the defendant’s proffered legitimate reasons for its decision are worthy of belief; it is the province of the jury rather than the court, however, to determine whether the inference generated by ‘same actor’ evidence is strong enough to outweigh a plaintiff’s evidence of pretext.”
  • Oncale v. Sundowner Offshore Services: “Because of the many facets of human motivation, it would be unwise to presume as a matter of law that human beings of one definable group will not discriminate against other members of their group. … If our precedents leave any doubt on the question, we hold today that nothing in Title VII necessarily bars a claim of discrimination because of … sex merely because the plaintiff and the defendant (or the person charged with acting on behalf of the defendant) are of the same sex.”

To survive summary judgment and bring an employment discrimination case to trial, it’s important to recognize red-herrings like these and remind the court that all reasonable inferences must be drawn in the employee’s favor as the non-moving party. To credit such arguments on the cold record at summary judgment, however seemingly persuasive, usurps the jury’s role in weighing evidence and making credibility determinations based on live testimony subject to cross-examination.

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