Pretext without Context

I. INTRODUCTION In Pretext in Peril, Professor Martin examines the interplay between procedural and substantive law in disparate treatment cases in which plaintiffs offer circumstantial evidence--evidence of pretext--as opposed to direct evidence (2) to maintain their employment discrimination claims. Pretext constitutes an evidentiary showing that the defendant's asserted reason for an adverse employment action that the plaintiff suffered is not the real reason or that an impermissible classification like race more likely than not motivated the adverse employment action. (3) Professor Martin argues that through the confluence of substantive and procedural law a plaintiff's evidence of pretext has become "hollow and forceless in evidentiary value." (4) With precision, Professor Martin critiques courts' use of "evidentiary-dilution devices," (5) making evidence of pretext devoid of discriminatory or prejudicial content. She also shows how courts employ "procedural reinforcement," (6) which results in the overwhelming grant of employers' motions to dismiss, motions for summary judgment, and judgments notwithstanding the verdict. In turn, courts' application of "evidentiary-dilution devices" and procedure impedes the viability of disparate treatment cases and the ability of plaintiffs to redress discrimination in the contemporary workplace. According to Professor Martin, one "evidentiary-dilution device" courts advance is an interpretation of pretextual evidence that "leav[es] the meaning of pretext indeterminate and meaningless" (7) and "severely undercut[s] plaintiffs' efforts to prove discriminatory bias." (8) Consequently, this response to Professor Martin's article addresses such an "evidentiary-dilution device" utilized by courts in race discrimination cases at both post-trial and pre-trial phases. Namely, this response places under scrutiny courts' acontextual, colorblind analyses of pretextual evidence offered by plaintiffs to demonstrate that they suffered an adverse employment action because of their race. In doing so, this response focuses on two disparate treatment cases originating in Alabama, where the plaintiffs, African American men, were addressed as "boy" by their white male supervisors. In both cases, the plaintiffs presented this highly emotive term as circumstantial evidence supporting their claims of race discrimination. First, this response addresses the lower courts' opinions in Ash v. Tyson Foods, Inc., (9) as well as the Supreme Court's per curiam opinion in this case, (10) which espouses a more contextualized analysis of pretext in race-based disparate treatment cases. Next, this response examines Holiness v. Moore-Handley, Inc. (11) and the acontextual, colorblind analysis the court applied. Each case illustrates the negative effects of courts analyzing pretext without context at different stages of race discrimination litigation: during post-trial phases in Ash v. Tyson Foods, Inc. and at the summary judgment stage in Holiness v. Moore-Handley, Inc. Ash v. Tyson Foods, Inc. and Holiness v. Moore-Handley, Inc. reveal judicial nullification of the jury's role and provide an opportunity to show the importance of contextualizing facts in race discrimination cases. I argue that judges should not eliminate this jury function summarily in disparate treatment cases; moreover, courts must apply a more nuanced methodology to these claims. (12) Accordingly, I proffer a more contextualized approach to the Holiness case that considers historical and contemporary race and gender relations in the United States and their manifestations in the workplace. Finally, this response briefly considers transformations of jurisprudential methodology needed in disparate treatment cases to redress the subtleties of racial inequality and stigmatization and thus unlawful race discrimination in the contemporary workplace. II. ASH V. TYSON FOODS, INC. : A CALL FOR CONTEXT In Ash v. …