GETTING BEYOND MENDACITY - THE EROSION OF THE FALSITY APPROACH TO PROVING DISCRIMINATORY INTENT

The courts of appeals are divided over how a plaintiff proves disparat e treatment in employment discrimination cases. Some courts hold that showing merely that the employer has lied (that the employer's stated reason for an adverse employment taction is false) always permits a ju ry to infer discriminatory intent. Other courts hold that employer men dacity may or may not permit this inference, depending upon all of the facts and circumstances. Recently, several courts who purportedly fol low the former, ''falsity'' approach have gravitated toward the latter approach when the plaintiff shows that the employer has lied only par tially. These cases and others show that falsity evidence is not alway s sufficient to prove discrimination, which, in essence, is about disp arate treatment, not mendacity.