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April 15, 2024
In a recent decision of the United States Court of Appeals for the Second Circuit, the Court addressed the principles governing pretext and causation in a disparate treatment[1] claim under Title VII of the Civil Rights Act of 1964. Bart v. Golub Corp., No. 23-238 (2d Cir. Mar. 26, 2024).
Elaine Bart was a female manager at Price Chopper, a supermarket chain operated by Golub Corporation. Golub terminated Bart’s employment two days after disciplining her for violating store policy, i.e., falsifying food logs that are maintained for health and safety purposes.[2] Though Bart admits that she violated Golub’s food log policy, she claims that Golub terminated her employment because of her gender. Specifically, Bart alleged that her direct supervisor, who was involved in the decision to terminate her employment, made remarks to her – as recently as two months before Bart’s termination – that he believed that women were not suited for management because being a manager was “too stressful” for women and women are “too sensitive to be managers.”
The lower court dismissed Bart’s claims before trial, finding that Bart’s “acknowledgement that the reason provided for her termination was factually accurate and valid under [Golub]’s policies and procedures[] is dispositive….” The Appeals Court disagreed.
After addressing legislative and decisional history regarding the burdens of proof applicable to discrimination claims, the Second Circuit reasoned that, to survive dismissal of a disparate treatment claim under Title VII, a plaintiff may, but need not, show that the employer’s stated justification for its adverse action was nothing but a pretext for discrimination. However, a plaintiff also may satisfy their burden by adducing evidence that, even if the employer had mixed motives for its adverse action against the plaintiff, the plaintiff’s membership in a protected class (a woman) was at least one motivating factor in the employer’s adverse action. The Second Circuit found that Bart’s testimony about her supervisor’s gender-biased remarks – i.e., women should not be managers – satisfied her burden in this case, which precluded pretrial dismissal of her claims.
Employers: Though you have a relatively low burden in a discrimination case to articulate a legitimate, non-discriminatory reason for adverse action against an employee, courts still will consider evidence that your motive was mixed and included, for example, gender bias. Even an employee’s admission of the conduct for which you may terminate their employment does not absolve you of unlawful discrimination.
This article is designed to provide one perspective regarding recent legal developments, and is not intended to serve as legal advice. Always consult an attorney with specific legal issues.
[1] Disparate treatment occurs when individuals who are members of a protected class are treated differently than others.
[2] Bart’s transgressions – which she admits – included missing entries on food service logs, out of code products in the walk-in cooler not discarded, product put out for sale not logged on the service logs, and product left out for sale after the allowable selling times.
