Tuesday, April 22, 2008

What's So Great About McDonnell Douglas Anyhow?

Scales This case states what I and others have long believed: the McDonnell Douglas requirement of a prima facie case is really nothing more these days than an unnecessary distraction.  This case is therefore significant because not only does it state that conclusion so bluntly, but also because it was joined both by Chief Judge Ginsburg of the D.C. Circuit and by labor law judge extraordinaire, Harry Edwards.

Here's a summary of the case, Brady v. Office of Sergeant at Arms, No. 06-5362, (D.C. Cir. Mar. 28, 2008), from the BNA's Daily Labor Report (subscription required) :

Whether an employee establishes a prima facie case is "a largely unnecessary sideshow," the U.S. Court of Appeals for the District of Columbia Circuit ruled March 28, finding that the Office of the Sergeant at Arms of the House of Representatives demoted an employee because it believed he engaged in sexual harassment and the employee could not show pretext.

The prima facie case "has not benefited employees or employers; nor has it simplified or expedited court proceedings," Judge Brett M. Kavanaugh stated, affirming summary judgment in a case under Title VII of the 1964 Civil Rights Act. "In fact, it has done exactly the opposite, spawning enormous confusion and wasting litigant and judicial resources," he said.

"Lest there be any lingering uncertainty, we state the rule clearly," Kavanaugh said. "In a Title VII disparate treatment suit where an employee has suffered an adverse employment action and an employer has asserted a legitimate, non-discriminatory reason for the decision, the district court need not--and should not--decide whether the plaintiff actually made out a prima facie case under McDonnell Douglas," he wrote.

"Rather," Kavanaugh said, "in considering an employer's motion for summary judgment or judgment as a matter of law in those circumstances, the district court must resolve one central question: Has the employee produced sufficient evidence for a reasonable jury to find that the employer's asserted non-discriminatory reason was not the actual reason and that the employer intentionally discriminated against the employee on the basis of race, color, religion, sex, or national origin?"

Besides my mixed feelings about not being able to teach about "the funnel" of evidence in employment discrimination pretext cases, and not being able to explain about the rebuttable presumption bubble popping when the defendant merely articulates a legitimate, nondiscriminatory reason, the fact of the matter is that plaintiffs may be better off without the prima facie case and will still win these cases if they show they have been discriminated against in an unlawful manner and the defendant does not respond.

Hat Tip: Dennis Nolan



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In my opinion, too this is a good development, but I have proposed elsewhere (warning: shameless self-promotion) a different construction of the test, one that better accounts for what the prima facie case was originally supposed to do. I think the question on summary judgment is better thought of as: would a jury be compelled to find that discrimination played no part in the employer's action. Only if the answer to that were "yes" would summary judgment be granted. This wording retains the core premise that in the absence of the usual business reasons for an adverse action, a trier of fact can infer that the real reason for the action was the plaintiff's protected class. In other words, there is a background acknowledgement that discrimination happens. This framing also takes into account Desert Palace.

Posted by: Marcia McCormick | Apr 22, 2008 7:21:04 AM

This case is a step forward to clearing the minefield of crazy rules that have been the focus of too much of individual disparate treatment law. Putting this together with the D.C. Circuit's decision in Fogg v. Gonzalez, that both the 703(a) "because of" and the 703(m) "a motivating factor" linkage tests are available in any individual disparate treatment case clears a lot of brush in one sense. In another, however, it opens up new questions about the relationship what evidence constitutes discrimination -- unequal treatment, acting on stereotypes, admissions of a party, process of elimination leaving discrimination as the most reasonable explanation for an adverse action -- and those two different tests for establishing linkage between defendant's act of discrimination and the adverse effect on plaintiff.

Posted by: Mike Zimmer | Apr 22, 2008 7:29:30 AM

Agreed w/Paul. And then we'd really be in business if courts stopped saying that pretext means the LNR was "not the actual reason" and instead remembered that "pretext" is a term of art that means at most that the LNR, even if true and relevant, is an insufficient explanation and that race/sex/etc is a but-for cause. See McDonald vs. Sante Fe Trail. I'd go further and say that "motivating factor" is the appropriate standard at the "pretext" stage, but the above is the bare minimum.

Posted by: Noah Zatz | Apr 22, 2008 7:32:33 AM

I am concerned that your comment is too ready to throw the baby out with the bath water. I want to protect against the common, current tendency to validate only direct proof of discrimination, a tendancy that I believe would be advanced by throwing out McDonnell Douglas.

McDonnell Douglas answered the question of what facts other than direct evidence of discrimination support a reasonable, permissible inference of discrimination?

Are you saying that evidence that the employer's non-discriminatory explanation is bogus is itself sufficient evidence to give rise to this inference? I seriously doubt it.

Note that Kavanaugh suggests that pretext evidence is NOT sufficient and that some other undefined kind of evidence must be added that shows "that the employer intentionally discriminated against the employee on the basis of [protected class]." If pretext alone is not enought to show discrimination, what guidance will we have after you throw out the notion that the prima facie case raises a reasonable inference of discrimination?

Throwing out McDonnell Douglas sure will help the employment law defense bar by raising pretext as a clear brightline defense. (i.e. "You had better show us (the court) evidence demonstrating pretext or you are out of court") But it will leave an amorphous void as to just what circumstancial evidence will ever be sufficient to support a finding of discrimination ("Okay, you showed pretext, but where's your OTHER evidence showing 'DISCRIMINATION'"

My years of court practice and case reading suggests to me that a signficant number of courts are all too ready to NOT SEE sufficient evidence of discrimination no matter what circumstantial evidence is placed before them. These courts simply reject the very premise of McDonnell Douglas--that evidence of class membership, satisfactory performance or qualification, and disparate treatment raises a fragile yet existant, reasonable inference of discriminatory motive. And they are often unreceptive to anything short of direct evidence of discrimination (and even disregard much direct evidence of discriminatory statements by decision contributors as "stray.")

In short, I believe that if you take away legal recognition of McDonnell Douglas's inference arising from the prima facia elements, you will leave a morass where those many who repeatedly REFUSE to recognize rational inferences of discrimination will be allowed to grant erroneous summary judgments, jnov's or directed verdicts, and will leave appellate courts without meaningful guidelines for reviewing them.

Posted by: Kenneth B. Merrill | May 9, 2008 12:48:14 AM

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