Thursday, May 23, 2019
Sandra Sperino (Cincinnati) just posted on friendofthecourt blog on the top five recent developments in McDonnell Douglas cases. Here, with permission, is her post:
For those interested in McDonnell Douglas, here are the top 5 developments over the last year.
- The second step of the test (employer articulates a legitimate, non-discriminatory reason) is often ignored. One appellate court recently engaged in a lengthy discussion and review of appellate cases related to the required specificity. Figueroa v. Pompeo, No. 18-5064, 2019 WL 2063562, at *5-10 (D.C. Cir. May 10, 2019). The court noted, “When the reason involves subjective criteria, the evidence must provide fair notice as to how the employer applied the standards to the employee’s own circumstances. Failing to provide such detail—that is, offering a vague reason—is the equivalent of offering no reason at all.” The court rejected an employer’s evidence that the plaintiff was ranked in the middle of the available candidates because the evidence did not explain why the employer ranked him that way. The court explained that the worker could not respond to the employer’s evidence because the employer supposedly ranked the plaintiff along 12 criteria, but the evidence did not explain which criteria caused the plaintiff’s mid-level ranking.
“A rush to the third prong may deprive the employee of McDonnell Douglas’s unrebutted presumption of discrimination created by the prima facie case.” This court stated that a court should determine whether the evidence presented by the employer has four attributes: it is admissible; that, if believed, the factfinder could find that the employer acted for a non-discriminatory reason; it must be legitimate (or facially credible); and be clear and reasonably specific.
- The debate over comparator evidence continues. The Eleventh Circuit (en banc) has rejected the Seventh Circuit standard, while also noting that its own prior standard regarding “similarly situated” was a mess. Lewis v. City of Union City, Georgia, 918 F.3d 1213 (11th Cir. 2019). The circuit stated that a meaningful comparator analysis is required in the prima facie case and that the plaintiff must show that she was similarly situated to her comparators in all material respects. The court rejected an “identical” standard, noting that in workplaces, “doppelgangers are like unicorns—they do not exist.” For an excellent discussion of the stakes of comparator evidence, read the dissent in Lewis.
- A district court interpreting Young v. UPS has held that a plaintiff proceeding on a failure to accommodate/disparate treatment claim based on pregnancy is not required to establish an adverse action. Thomas v. Fla. Pars. Juvenile Justice Comm'n, No. CV 18-2921, 2019 WL 118011, at *8 (E.D. La. Jan. 7, 2019) (plaintiff could establish harm by showing she was required to go on a 1.5 mile run despite doctor’s note restricting activity).
- A great new article about the test is Katie R. Eyer, The Return of the Technical McDonnell Douglas Paradigm (forthcoming Washington Law Review) (available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3362529).
- Finally, the unrecognized intracircuit splits continue. Different panels of the same circuit continue to articulate the test in ways that appear to contradict one another. Some courts are beginning to differentiate the level of comparator evidence and causation evidence required in the prima facie case. Some courts will state that the plaintiff is required to show minimal causal evidence in the prima facie case. Some courts will state that a plaintiff relying on similarly situated comparator evidence has a lesser burden at the prima facie stage than in stage three.