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The Second Circuit rarely sits en bank – at most once or twice a year. When the full court chooses to hear a case, therefore, you can expect that its decision will be an important one that will shape the law in the Circuit for some time to come. That is certainly true of the Second Circuit’s en banc ruling in Fisher v. Vassar College , 114 F3d 1332 (1997), where a sharply divided court (6-5) tackled a decade-old gender and age bias claim by a former Vassar College biology professor.

Thankfully for employers, the decision clearly raises the bar for plaintiffs in discrimination cases by holding that a showing of pretext-that is, that an employer’s stated reason for adverse employment action is not worthy of belief-is not enough to sustain a verdict of discrimination. As the Court put it: “The fact that the employer is hiding something does not necessarily mean that the hidden something is discrimination.” According to the Second Circuit, a plaintiff must show more than that her employer lied about the real reason for its actions, the employee must also show that the employer’s true motive was illegal discrimination. The Supreme Court has denied Fisher’s request for review.

Vassar’s Tenure Decision
Dr. Cynthia Fisher, now 65, was a member of the Vassar College faculty from 1977 through 1986. In 1985, Vassar denied her tenure. Dr. Fisher sued the college and, after a three-week trial, the judge rejected Vassar’s stated reasons for denying Dr. Fisher tenure and found that Vassar’s real reasons for denying her tenure were because she was a married woman and because of her age. The court based this finding on anecdotal evidence, inconsistencies in the manner in which Dr. Fisher and other candidates were evaluated for tenure, and statistics and expert testimony that even though married women constituted more than 50% of women in science nationally, no married woman had received tenure in the “hard” sciences at Vassar. Dr. Fisher was awarded approximately $1 million in damages and fees and Vassar was ordered to reinstate her.

The McDonnell Douglas Minuet
In McDonnell Douglas Corp. v. Green, 411 US. 792 (1973), the Supreme Court established a complex burden shifting framework by which most claims of discrimination under Title VII and ADEA are analyzed. Under the McDonnell Douglas scheme, a plaintiff alleging discrimination must first make out a prima facie case by showing:

1. membership in a protected class;
2. qualification for the position sought or denied;
3. adverse employment action; and
4. ultimate filling of the position by someone not of the protected class.

Establishing the prima facie case creates a presumption that the employer unlawfully discriminated against the employee and shifts the burden to the employer to come forward with a legitimate, nondiscriminatory reason for adverse employment action. Once the employer proffers such a justification, the burden then shifts back to plaintiff, who must then prove by a preponderance of the evidence that the employer’s stated justification is not true and that plaintiff was, in fact, a victim of discrimination.

What was not entirely clear before Fisher was whether disbelief of the employer – that is, a showing that the employer’s asserted reason for the adverse employment action was “pretextual” – coupled with plaintiff’s prima facie case was automatically enough to satisfy plaintiff’s burden of proving unlawful discrimination and what the appellate court’s role would be in reviewing a finding of discrimination once plaintiff had shown pretext. Ironically, this issue was left open to question by reason of a comment by Justice Scalia in his majority opinion in St. Mary’s Honor Center v. Hicks, 450 US. 511 (1993), a decision in which he had sought to clarify the burden shifting framework of McDonnell Douglas and the proper role of appellate courts. In a passage featured by the dissenters in Fisher, Justice Scalia in St. Mary’s said that “rejection of the defendant’s proffered reasons will permit the trier of fact to infer discrimination, and… ‘[n]o additional proof of discrimination is required.”‘ Id. at 511 (emphasis in original).

Pretext Alone Does Not Mean Bias
Prior to the Second Circuit’s decision in Fisher, it was not clear whether it was enough for a plaintiff to prove that the employer’s given reason for firing her was a pretext or if the plaintiff also had to prove that it was a pretext for discrimination. In analyzing this question, the court noted that simply labeling the employer’s justification as pretextual does not answer the key question under the employment discrimination laws: pretext for what? The court held that while an employer’s proffered, untruthful reason may be a mask for unlawful discrimination, “discrimination does not lurk behind every inaccurate statement.” Taking note of human nature, the court observed that “[i]ndividual decision-makers may intentionally dissemble in order to hide a reason that is non-discriminatory but unbecoming or small-minded, such as back-scratching, log-rolling, horse-trading, institutional politics, envy, nepotism, spite or personal hostility.” Since none of those reasons is unlawful, the fact that plaintiff proved that the employer’s proffered reason was false does not necessarily mean that the employer’s true motive was the illegal one argued by the plaintiff.

Just as importantly, the mere fact that the plaintiff has proven that the employer is lying does not mean the jury has carte blanche to find in favor of the employee. The Second Circuit may still review and overturn the jury’s decision. To hold otherwise, said the court, would improperly shift the burden of proof to the employer to disprove discrimination.

Fisher’s Significance
Fisher is a watershed decision that is likely to usher in an era of more meaningful appellate review of employment discrimination decisions. It will also permit employers to insist that the judge instruct the jury that mere disbelief of the employer’s stated reasons for adverse employment action does not mean that the employer discriminated against the employee. Finally, the decision may have a significant, and favorable, impact on the ability of employers to obtain summary judgment in discrimination cases. If so, Fisher will represent a major change for Connecticut employers.