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

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