The Pretext Element: Two Methods of Proof
Under the McDonnell Douglas Framework (Framework), as applied by Washington State courts, what are the two methods of proof for establishing step 3: the pretext element? Here's my point of view (NOTE: please read our DISCLAIMER before proceeding).
THE MCDONNELL DOUGLAS BURDEN-SHIFTING FRAMEWORK
STEP 1: The "plaintiff bears the initial burden of establishing a prima facie case of discrimination, which creates a presumption of discrimination." Scrivener v. Clark College, 181 Wn.2d 439, 446, 334 P.3d 541, (2014) (citing, Riehl, 152 Wn.2d at 149-50; Kastanis v. Educ. Emps. Credit Union, 122 Wn.2d 483, 490, 859 P.2d 26, 865 P.2d 507 (1993)) (internal citations and quotation marks omitted) (emphasis and hyperlink added).
STEP 2: "[T]he burden shifts to the defendant, who must articulate a legitimate, nondiscriminatory reason for the adverse employment action." Mikkelsen v. Public Utility District No. 1 of Kittitas County, 189 Wn.2d 516, 527 (Wash. 2017) (internal citations and quotation marks omitted) (emphasis and hyperlink added).
STEP 3: "[I]f the defendant meets this burden, the plaintiff must produce sufficient evidence showing that the defendant's alleged nondiscriminatory reason for the adverse employment action was a pretext." Id. (internal citations omitted) (emphasis and hyperlink added).
STEP 3 -- THE PRETEXT ELEMENT: TWO METHODS OF PROOF
If the plaintiff establishes a prima facie case (step 1) and the employer articulates a legitimate, nondiscriminatory reason (step 2), then pursuant to step 3, "the employee must produce sufficient evidence showing that the employer's alleged nondiscriminatory reason for the discharge was a pretext." Crabtree v. Jefferson Cnty. Pub. Hosp. Dist. No. 2, 500 P.3d 203, 212 (Wash. App. 2021) (citing Mikkelsen, 189 Wash.2d at 527, 404 P.3d 464).
"An employee may satisfy the pretext prong by offering sufficient evidence to create a genuine issue of material fact either …
[(1)] that the defendant's reason is pretextual or …
[(2)] that although the employer's stated reason is legitimate, discrimination nevertheless was a substantial factor motivating the employer.
Id. (citing Mikkelsen, 189 Wash.2d at 527, 404 P.3d 464) (internal citation and quotation marks omitted) (emphasis and paragraph formatting added).
(1) METHOD #1 -- THE DEFENDANT'S REASON IS PRETEXTUAL
"Employees may satisfy the pretext prong of the [burden shifting] framework by offering sufficient evidence to create a genuine issue of material fact … that the employer's articulated reason for its action is pretextual." Crabtree, 500 P.3d at 212 (citing Scrivener, 181 Wash.2d at 441, 334 P.3d 541) (internal quotation marks omitted) (alteration in original).
"The ways in which an employee can show that a stated reason for termination was pretext for discrimination include, but are not limited to,
[(a)] that the reason has no basis in fact,
[(b)] it was not really a motivating factor for the decision …[,]
[(c)] it lacks a temporal connection to the decision[,] [or]
[(d)] [it] was not a motivating factor in employment decisions for other employees in the same circumstances.
Id. (citing Scrivener, 181 Wash.2d at 447-48, 334 P.3d 541) (internal citations and quotation marks omitted) (sixth alteration in original) (emphasis and paragraph formatting added).
(2) METHOD #2 -- DISCRIMINATION WAS A SUBSTANTIAL MOTIVATING FACTOR
A discriminatory-discharge plaintiff "can alternatively meet … [their] burden to show pretext by showing that discrimination was a substantial motivating factor for … [their] termination." See Crabtree, 500 P.3d at 214 (citing Mikkelsen, 189 Wash.2d at 527, 404 P.3d 464). "In an employment discrimination context, our Supreme Court has recognized that evidence of employer treatment of other employees is permissible to show motive or intent for harassment or discharge." Id. (citing Brundridge v. Fluor Fed. Servs., Inc., 164 Wash.2d 432, 445, 191 P.3d 879 (2008)) (internal quotation marks omitted).
However, it's important to note that the "employee is not required to show that discrimination was the only motivating factor for the discharge because an employer's decision may be based on both legitimate and illegitimate reasons." Crabtree, 500 P.3d at 212 (citing Mikkelsen, 189 Wash.2d at 534, 404 P.3d 464).
READ MORE OF OUR RELATED ARTICLES 🔍
➣ For broader coverage of the McDonnell Douglas burden-shifting framework, read our article entitled: The McDonnell Douglas Burden-Shifting Framework.
➣ To see a Washington State court analyze an actual lawsuit for pretext using both methods described above, read our article entitled: Crabtree v. Jefferson Cnty. Pub. Hosp. Dist. No. 2*.
➣ To learn about considerations and limitations in establishing the pretext element, read our article entitled: The Pretext Element: Six Limitations.
➣ To learn about using self-evaluations to establish the pretext element, read our article entitled: The Pretext Element: Self-Evaluations.
(*NOTE: The link will take the reader to our external website: Court Slips.)
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If you would like to learn more, then consider contacting an experienced Washington State Employment Discrimination Attorney as soon as possible to discuss your case. Please note: the information contained in this article is not offered as legal advice and will not form an attorney-client relationship with either this author or Williams Law Group, PS; please see our DISCLAIMER.
