. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993), may be used in conjunction with the essential elements instruction when the plaintiff relies substantially or exclusively on “indirect evidence” of discrimination. . . . 
	Townsend v. Lumbermens Mutual Casualty. Co., 294 F.3d 1232, 89 FEP Cases 306 (10th Cir. 2002), a three-opinion case, reversed the judgment on a jury verdict for the § 1981 and Title VII racial discrimination defendant. Senior Judge Holloway wrote at 1241:
This is a difficult matter for courts, and would certainly be difficult for a jury. We consider the danger too great that a jury might make the same assumption that the Fifth Circuit did in Reeves. Therefore, we hold that in cases such as this, a trial court must instruct jurors that if they disbelieve an employer’s proffered explanation they may—but need not—infer that the employer’s true motive was discriminatory. Moreover we are persuaded by the position of the EEOC that the issue is whether in the absence of any instructions about pretext, “the jury found for the defendant because it believed the plaintiff could not prevail without affirmative evidence that his race was a motivating factor in the challenged employment decisions.”
	We do not hold that a pretext instruction is always required, but rather that it is required where, as here, a rational finder of fact could reasonably find the defendant’s explanation false and could “infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose.”
(Footnote and citations omitted.) Judge Henry concurred at 1244, stating: “Given the recent confusion regarding the nature of the proof necessary to prevail on a Title VII claim, I am persuaded that, absent the proposed instruction, jurors are left without adequate guidance as to the circumstances in which they may infer discriminatory intent. Thus, under similar facts and where requested, I believe the instruction must be given; I concur.” Senior Judge Brorby dissented. Id. at 1244–48.
	Palmer v. Board of Regents, 208 F.3d 969, 974–75, 82 FEP Cases 1024 (11th Cir. 2000), affirmed the judgment on a jury verdict for the Title VII religious discrimination defendant, but held that a pretext instruction could be useful but that it was not required. The court stated: “We would however suggest that it might be helpful for the Committee On Pattern Jury Instructions of the District Judges Association of the Eleventh Circuit to revisit the pattern jury instruction on this issue to consider whether any improvements in clarity might be warranted.” Judge Cox concurred specially, stating that such an instruction may confuse more than clarify. 
	Conroy v. Abraham Chevrolet-Tampa, Inc., 375 F.3d 1228, 1233–35, 94 FEP Cases 107 (11th Cir.), cert. denied, __ U.S. __, 125 S. Ct. 811 (2004), affirmed the judgment on a jury verdict for the ADEA defendant. The court held that plaintiff’s proposed pretext instruction described the law accurately, but that the use of such instructions, while proper, is not compulsory.
	Even if Palmer were not controlling here, we would still hold there was no error in failing to give Conroy’s requested instruction. Conroy argues that the jury was misled to believe that it could not infer discrimination or retaliation from a finding of pretext due to the district court’s charge to the jury that (1) it was Conroy’s burden to prove discrimination and (2) the jury could not second guess Abraham Chevrolet’s legitimate business decisions. We do not agree, however, that either of these instructions misled the jury. First, the instruction on burden of proof required Conroy to establish discrimination, but it did not limit the methods by which he could prove it. Second, although the business judgment instruction explained to the jury that it could not second guess Abraham Chevrolet’s legitimate business motives, it did not require the jury to believe that any of the legitimate reasons advanced by the employer were in fact the true motivations behind Conroy’s discharge. Not only do we reject Conroy’s assertion that these instructions inhibited the jury from inferring discrimination or retaliation based on a finding of pretext, but we consider them both to be standard jury instructions that accurately reflect the law in this Circuit.
	Though we do acknowledge that Conroy’s pretext instruction is also a correct statement of law, we can only reverse the district court’s decision if (1) the contents of the requested instruction were not adequately covered by the jury charge and (2) Conroy suffered prejudicial harm. . . . The charge to the jury gave instructions on drawing inferences from the evidence and weighing the credibility of witnesses. This was sufficient to allow the jury to find discrimination or retaliation so long as they disbelieved Abraham Chevrolet’s explanation for Conroy’s termination. We also find it significant that Conroy’s counsel made good use of his opportunity to argue pretext to the jury in closing statements: 
	A claim has been made, there is no confession. Nobody ever confesses in a discrimination case. You’re going to have [to] weigh the testimony and decide do you think age had something to do with it. And I would suggest to you that when the man who fires him or without any warning, any documented reports of anything going wrong and comes up here with inconsistent statements that you can read into, that inconsistency and make an inference that, perhaps, the reason that was given by them may not have been the real reason. That’s going to be one of the jury instructions[,] that you can read into and understand what the evidence is, make reasonable inferences in terms of their explanation . . . You can certainly read into that. If there’s an inconsistent reason, then the age maybe had something to do with it. 
	We therefore reject Conroy’s contention that he was prejudiced by the district court’s failure to give his requested instruction. . . . Accordingly, we find no reversible error and hold that the district courts, though permitted, are not required to give the jury a specific instruction on pretext in employment discrimination cases.
Id. at 1234–35.
 “Business Judgment” Jury Instructions
	The risk to fairness in a “business judgment” instruction is that, without more, it can readily short-circuit the process of deliberation by leading jurors to believe they should not question the sincerity of the proffered nondiscriminatory reasons. Its specificity winds up trumping the general instructions about credibility and the weight of the evidence. 
	Even trial judges have made this mistake, granting defendants summary judgment or judgment as a matter of law without even considering the evidence against the defendant, on the ground that the adverse employment decision was first and foremost a business decision they are not allowed to second-guess:
Byrnie v. Town of Cromwell Public Schools, 73 F.Supp.2d 204, 214, 85 FEP Cases 307 (D. Conn. 1999), relied on the “business judgment” doctrine in refusing to compare the candidates’ qualifications, and granted summary judgment to the Title VII, ADEA, and State-law defendant. Reversing, the Second Circuit relied on the fact that plaintiff was better-qualified on paper, and that there were numerous procedural and substantive anomalies raising doubts about the defendant’s good faith in evaluating the candidates. It stated: “That is to say that ‘[w]hile the business judgment rule protects the sincere employer against second-guessing of the reasonableness of its judgments, it does not protect the employer against attacks on its credibility.’” Byrnie v. Town of Cromwell, Board of Education, 243 F.3d 93, 105, 85 FEP Cases 323 (2d Cir. 2001). 
Wexler v. White’s Furniture, 317 F.3d 564, 576–78, 90 FEP Cases 1551 (6th Cir. 2003) (en banc), reversed the grant of summary judgment to the ADEA defendant. The court held that the lower court paid unwarranted deference to the defendant’s business judgment in blaming plaintiff for the store’s low sales. The court held: “A plaintiff can refute the legitimate, nondiscriminatory reason that an employer offers to justify an adverse employment action ‘by showing that the proffered reason (1) has no basis in fact, (2) did not actually motivate the defendant’s challenged conduct, or (3) was insufficient to warrant the challenged conduct.’” Id. at 576. 
	The district court therefore erred by invoking the business judgment rule to exclude consideration of evidence relevant to the question of pretext. As a result, the district court ignored inferences in favor of Wexler that can be drawn from the evidence about whether it was reasonable to blame him for the Morse Road store’s declining sales. Wexler produced evidence indicating that White’s was aware that the decline in revenue was not his fault. He pointed to evidence showing that the management of White’s knew that the company’s advertising strategy had hurt sales throughout the chain, including a decrease in sales at the Morse Road store. If believed, a trier of fact could reasonably infer that the justification for Wexler’s demotion was insufficient to warrant the adverse decision.
	Id. at 577. Judges Krupansky and Boggs dissented. Id. at 578–97.
McCowan v. All Star Maintenance, Inc., 273 F.3d 917, 926, 87 FEP Cases 596 (10th Cir. 2001), reversed the grant of summary judgment to the Title VII and § 1981 national-origin or ethnic discrimination plaintiffs, commenting on the short0-circuiting of analysis below by defendant’s talismanic invocation of “business judgment”: “Although the district court did not evaluate All Star’s explanation for terminating Plaintiffs against this evidence, the employer’s business judgment cannot be immunized from the totality of the circumstances inquiry.”
Beaird v. Seagate Technology, Inc., 145 F.3d 1159, 1169, 76 FEP Cases 1865 (10th Cir.), cert. denied, 525 U.S. 1054 (1998), affirmed in part and reversed in part the grant of summary judgment to the defendant, stating:
But this principle does not immunize all potential “business judgments” from judicial review for illegal discrimination. . . . Such a doctrine would defeat the entire purpose of the ADEA. . . . There may be circumstances in which a claimed business judgment is so idiosyncratic or questionable that a factfinder could reasonably find that it is a pretext for illegal discrimination. 
 	The Eighth Circuit is the only Circuit to require that this type of instruction be given when requested, but it also has a pattern instruction informing the jury that it is permitted, but not required, to draw the inference of unlawful motive from proof that the defendant’s proffered nondiscriminatory reasons are false.
	The text of the Seventh Circuit’s “cautionary” instruction and the Eighth Circuit’s instruction illustrate the dangers of going down this road. Both tell jurors to ignore defendant’s unreasonableness, but that unreasonableness can be powerful evidence of discrimination. The overly harsh treatment of a black or