Ninth Circuit Clarifies Standard of Evidence for Pretext in Sex Discrimination Cases.
Godwin v. Hunt Wesson, Inc., 150 F.3d 1217 (9th Cir. 1998)
In Godwin, the court framed the issue as follows: "What showing of pretext by a plaintiff in a sex discrimination suit is sufficient to overcome a defendant's motion for summary judgment, where the defendant asserts that its refusal to promote the plaintiff was based on legitimate, non-discriminatory motives?" The court's answer to that question, however, would seem to apply to a broader range of discrimination cases.
Marsha Godwin had been a sales manager for Hunt Wesson for nine years when two marketing manager positions became available. She applied for both positions, but was rejected in favor of male candidates. She then brought a claim under the Fair Employment and Housing Act, which apparently was removed to federal court. After the district court granted the employer's motion for summary judgment, Godwin appealed.
The court first noted that Godwin had made out a prima facie case of sex discrimination and that Hunt Wesson had come forward with evidence of a non-discriminatory motive for its decisions. The court focused its attention on the pretext component of the case to determine what quantum of direct or circumstantial evidence the plaintiff must produce in order to create a triable issue of fact.
Citing exclusively federal cases decided under Title VII, the court held that where the plaintiff has direct evidence of discrimination (defined as "evidence which, if believed, proves the fact of discriminatory animus without inference or presumption"), the plaintiff must adduce "very little" to proceed to defeat summary judgment. Here, the court found ample such evidence—including a statement that one of the male managers "did not want to deal with another woman manager," and evidence that a woman manager had been given a "Barbie doll kit" containing two dildos and a bottle of Wesson oil at a sales meeting.
Where such direct evidence is unavailable, a plaintiff must come forward with circumstantial evidence, defined by the court as "evidence that tends to show that the employer's proffered motives were not the actual motives because they are inconsistent or otherwise not believable." Such evidence, opined the court, must be "specific" and "substantial" in order to create a triable issue with respect to whether the employer intended to discriminate." Here, the court also found sufficient circumstantial evidence to send the case to the jury, finding the contemporaneous reasons given for the selection of male candidates inconsistent with the statements on which the employer relied. For example, noted the court, the employer asserted in its defense to the summary judgment motion that "creativity" was the most important consideration for the manager positions, yet that the criterion did not appear in contemporaneous memorandum prepared at the time of the selections. In addition, Godwin's recommendations characterized her as "creative," yet she was not selected.
What It Means to You:
Godwin seems to raise more question than it answers. The court's definitions of "direct" and "circumstantial" evidence seem too facile to be of much use in the usual discrimination case, where the line between evidence that directly indicates a discriminatory animus and that which only suggests such an animus is inherently blurred. In addition, the court does not provide much guidance as to the quantum of evidence required to defeat summary judgment. For example, does the court's statement that "very little" direct evidence is required mean that any scintilla of evidence, no matter how minor, will defeat summary judgment? Similarly, what does "specific" and "substantial" mean in the context of circumstantial evidence, which by its nature is more indirect and diffuse? These questions will have to await clarification in later decisions.
Source: "The Purple," Copyright Landels Ripley & Diamond, LLP, Fall 1998. Reprinted with permission.