In deciding cases under the Age Discrimination in Employment Act (ADEA), several circuit courts of appeals have interpreted the tripartite test set forth in McDonnell Douglas v. Green to mean that a plaintiff could prevail in proving individual disparate treatment by proving a prima facie case and that the employer's proffered reasons were a pretext. The Third, Seventh and Eighth Circuits concluded that a showing that a proffered justification is pretextual is equivalent to a finding that the employer intentionally discriminated. In other words, "the plaintiff is entitled to judgment as a matter of law when, in the third stage of the McDonnell Douglas test, the plaintiff has persuaded the factfinder that the defendant's proffered, legitimate, nondiscriminatory reason for the challenged adverse action was not the true reason." This approach is known as "pretext-only." On the other hand, the First Circuit and the Fourth Circuit adopted what is known as the "pretext-plus" approach. Applying this standard, the plaintiff cannot prevail unless he proves both that the employer's proffered reason was false and that the real reason was age discrimination. The plaintiff is required not only to persuade the trier of fact that the employer's proffered reasons for the employment decision were false, but also to provide some additional evidence of discriminatory animus to persuade the trier of fact that the true reason was age discrimination.
Susan C. North,
Does Pretext Plus Age Equal the Sum of the Judgement?,
U. Rich. L. Rev.
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