St. Mary's Honor Center v. Hicks, 509 U.S. 502, 30 (1993)

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Cite as: 509 U. S. 502 (1993)

Souter, J., dissenting

now must have the opportunity to demonstrate that the proffered reason was not the true reason for the employment decision. This burden now merges with the ultimate burden of persuading the court that [the plaintiff] has been the victim of intentional discrimination." 6 450 U. S., at 256. Burdine drives home the point that the case has proceeded to "a new level of specificity" by explaining that the plaintiff can meet his burden of persuasion in either of two ways: "either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." 7 Ibid.; see Aikens, 460 U. S., at 716

doubt that such a change in diction would have altered the meaning of these crucial passages in the manner the majority suggests, see n. 7, infra, but even on the majority's assumption that there is a crucial difference, it must believe that the McDonnell Douglas Court was rather sloppy in summarizing its own opinion. Earlier in the McDonnell Douglas opinion, the Court does state that an employer may not use a plaintiff's conduct "as a pretext for . . . discrimination." 411 U. S., at 804; see ante, at 516, n. 6 (quoting this sentence to justify rewriting the McDonnell Douglas summary). But in the next sentence, when the McDonnell Douglas Court's focus shifts from what the employer may not do to what the plaintiff must show, the Court states that the plaintiff must "be afforded a fair opportunity to show that [the employer's] stated reason for [the plaintiff's] rejection was in fact pretext," plain and simple. 411 U. S., at 804. To the extent choosing between "pretext" and "pretext for discrimination" is important, the McDonnell Douglas Court's diction appears to be consistent, not sloppy. Burdine, of course, nails down the point that the plaintiff satisfies his burden simply by proving that the employer's explanation does not deserve credence. See infra this page.

6 The majority puts forward what it calls "a more reasonable reading" of this passage, ante, at 517, but its chosen interpretation of the "merger" that occurs is flatly contradicted by the very next sentence in Burdine, which indicates, as the majority subsequently admits, ante, at 517, that the burden of persuasion is limited to the question of pretext. It seems to me "more reasonable" to interpret the "merger" language in harmony with, rather than in contradiction to, its immediate context in Burdine.

7 The majority's effort to rewrite Burdine centers on repudiating this passage, see ante, at 517-520, which has provided specific, concrete guidance to courts and Title VII litigants for more than a decade, and on replacing "pretext" wherever it appears with "pretext for discrimination,"

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