Monday, April 28, 2008
Recall that last week, Paul posted on Brady v. Office of Sergeant at Arms, in which the D.C. Circuit criticized the prima facie case requirement of the McDonnell-Douglass circumstantial evidence test for proving employment discrimination. Judge Timothy M. Tymkovich similarly criticizes the pretext requirement, in a law review article just published in Denver Law Review. The article is Hon. Timothy M. Tymkovich, The Problem with Pretext, 85 Denver U. L. Rev. 503 (2008).
Judge Tymkovich argues that "[w]hile the Supreme Court initially insisted that [the McDonnell-Douglass burden-shifting framework] was necessary to ensure that plaintiffs have their day in court," there now is widespread recognition that the framework creates only confusion. Judge Tymkovich provides as examples the compartmentalization of evidence, the artificial dichotomy between direct and circumstantial evidence, the artificial dichotomy between mixed-motive and single-motive cases, and the circuit split on the issue of whether judges should give the McDonnell-Douglass framework as a jury instruction.
Judge Tymkovich argues that the time is right for a "simpler, more direct method of evaluating the question of discrimination." He proposes that
[t]he current framework, stemming from the tripartite scheme first announced in McDonnell Douglas, should be reconsidered in favor of a simple sufficiency of the evidence approach. The plaintiff should maintain the burden of proof to convince the judge or jury that the adverse employment decision about which the plaintiff complains resulted from a discriminatory motive. In this way, the focus of the case is on whether or not the employee suffered from discrimination.