Posner: "Insufficient to Motivate Challenged Action" Is Not The Test

Judge Posner of the Seventh Circuit recently weighed in on a pretext argument that has been popping up here and there across the Title VII landscape recently. In Forrester v. Rauland-Borg Corp. (7th Cir. June 29, 2006), the Court addresses the argument that a plaintiff may prove an employer's stated reason for the challenged employment action was pretext for discrimination by submitting proof that said stated reason was "insufficient to motivate" the action.

Posner rejects this attempt to reframe the pretext issue as being needless distinction without a difference that will only lead to confusion. In affirming summary judgment, Judge Posner writes:

"It [the 'insufficient to motivate' prong] adds nothing to the analysis of pretext but confusion. If the stated reason for the challenged action did not motivate the action, then it was indeed pretextual. If it was insufficient to motivate the action, either this means that it didn't motivate it, or that it shouldn't have motivated it. If the first is the intended sense, the dictum is just a murky way of saying that the stated reason was not the real reason. If the second sense is the one intended, then the dictum is wrong because the question is never whether the employer was mistaken, cruel, unethical, out of his head, or downright irrational in taking the action for the stated reason, but simply whether the stated reason was his reason: not a good reason, but the true reason."