Plus at Pretext: Resolving the Split Regarding the Sufficiency of Temporal Proximity Evidence in Title VII Retaliation Cases

26 Pages Posted: 18 Oct 2008 Last revised: 17 Jun 2009

See all articles by Troy B. Daniels

Troy B. Daniels

Northern Kentucky University - Salmon P. Chase College of Law

Richard A. Bales

Ohio Northern University - Pettit College of Law

Abstract

Courts in Title VII retaliation cases disagree over the evidentiary value of temporal proximity evidence when an employer fires an employee weeks or a few months after the employee engaged in protected activity. Seven circuits have adopted the Temporal Proximity Alone approach, which views temporal proximity evidence as sufficient, standing alone, to establish the causal connection element of a plaintiff's prima facie case. Three circuits have adopted the Temporal Proximity Plus approach, which requires that temporal proximity be combined with other evidence before it can establish the causal connection element. The Supreme Court has acknowledged the split of authority but has not yet granted certiorari.

This article argues that courts should require Temporal Proximity Alone at the prima facie case stage of the analysis, but require Temporal Proximity Plus at the pretext stage, an approach we call the Plus at Pretext approach. This novel approach maintains a relatively light burden on discrimination plaintiffs at the prima facie case stage of proof, but compensates by imposing a heavier burden at the pretext stage. It is both the best policy approach and it neatly reconciles existing case law.

Keywords: Title VII, retaliation, evidence, time, temporal, proximity

Suggested Citation

Daniels, Troy B. and Bales, Richard A., Plus at Pretext: Resolving the Split Regarding the Sufficiency of Temporal Proximity Evidence in Title VII Retaliation Cases. Gonzaga Law Review, Vol. 44, No. 3, 2009. Available at SSRN: https://ssrn.com/abstract=1286132

Troy B. Daniels

Northern Kentucky University - Salmon P. Chase College of Law ( email )

Nunn Hall
Highland Heights, KY 41099
United States

Richard A. Bales (Contact Author)

Ohio Northern University - Pettit College of Law ( email )

525 South Main Street
Ada, OH 45810
United States
419-772-2205 (Phone)

HOME PAGE: http://law.onu.edu/node/3073

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