Pretext Law & Legal Definition


Pretext generally refers to a reason for an action which is false, and offered to cover up true motives or intentions. It is a concept sometimes brought up in the context of employment discrimination. Pretext can be found based on (a) statistics, (b) comparators similarly situated, (c) written or oral statement(s) indicating bias, or (d) just plain false reason. If the employment discrimination plaintiff establishes its prima facie case, the burden then shifts to the defendant to articulate some legitimate, nondiscriminatory reason for the employer's actions. If the defendant carries this burden, the plaintiff must prove that the proffered reasons were pretextual. Pretext is established by a direct showing that a discriminatory reason more likely motivated the employer or by an indirect showing that the employer's explanation is not credible.

Three approaches have been developed by the courts for proving pretext. They have been referred to as "pretext only," "permissive pretext only," and "pretext plus." "Pretext only" is the least stringent of the three approaches. It simply requires that a plaintiff prove that the defendant's proffered reason is pretextual. Once this is proven, the plaintiff is entitled to judgment as a matter of law. The intermediate approach is the "permissive pretext only" standard. Under this method, if the plaintiff establishes that the defendant's reasons are pretextual the trier of fact is permitted, but not required, to enter judgment for the plaintiff. The pretext plus approach to employment discrimination cases requires a direct showing of discrimination, in addition to proof of pretext. In St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993), the U.S. Supreme Court rejected the "pretext plus" and "pretext only" approaches in favor of the "permissive pretext only" standard and held that it was permissible, but not mandatory, for the trier of fact to make an ultimate finding of intentional discrimination once the plaintiff has established pretext.