Monday, March 23, 2020

Comcast and McDonnell Douglas

            In today’s Comcast opinion, the Supreme Court held that plaintiff must prove “but for” cause to prevail on a section 1981 claim.  On page 12 of the opinion, the Court discussed how this holding intersects with McDonnell Douglas.  Here are the highlights:

  • The Court seems to leave McDonnell Douglas intact, while also cryptically noting that a plaintiff may not use the test to survive a motion to dismiss when the complaint fails to allege essential elements of a claim.
  • There are two components to the Court’s Comcast holding: (1) that the plaintiff bears the burden of proof and (2) the required substantive standard is “but for” cause. There is a way to align McDonnell Douglas with both components. Current McDonnell Douglas doctrine would allow a plaintiff to establish “but for” cause either through the prima facie case or through pretext. If a plaintiff can establish the prima facie case, this creates a rebuttable presumption that a protected trait was the cause of the action.  Similarly, if a factfinder finds pretext, the factfinder may find that the protected trait was the cause of the challenged action.
  • In one sentence, the Court indicated a way that McDonnell Douglas can procedurally align with the holding that the plaintiff bears the burden. The Court noted that McDonnell Douglas only shifts the burden of production to the defendant. The Court may be hinting that since the burden of persuasion always remains with the plaintiff, that the slight shift of the burden of production in step two of McDonnell Douglas does not contradict the Comcast
  • The Court noted that the purpose of McDonnell Douglas is to help courts assess claims when a plaintiff relies on indirect evidence. However, the Court noted that the test sought to create a test for courts to use at summary judgment. This sentence is problematic because it is unclear why courts would use a different test than the one a factfinder would ultimately use. In other words, there should not be one test at summary judgment and another at trial.  Judges often instruct juries using the core concepts from McDonnell Douglas (like pretext), but often refuse to instruct them under the entire framework.
  • It should be noted that McDonnell Douglas itself was a bench-tried case. At the time the Court decided the case, Title VII did not apply to jury trials.
  • The Court hinted that McDonnell Douglas may not apply in Section 1981 cases, but it is difficult to tell. The Court started a sentence with the following: “[w]hether or not McDonnell Douglas has some useful role to play” in Section 1981 cases.  It is not clear what this introductory phrase means.
  • The Court stated that McDonnell Douglas arose in a context where “but for” cause was the undisputed test. This is not completely accurate.  It is true that many courts were using “but for” cause in 1973; however, the question of causation had not crystallized in the case law at the time. It would be more accurate to say that the courts generally were not seriously focusing on the question of causation in 1973. Recall that the major contours of Title VII and its administrative process were still being interpreted at this time.

Here is a link to the opinion:

Sandra Sperino

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A thought on Comcast: If under General Building Contractors, Section 1981 and the Fourteenth Amendment Equal Protection clause are close cousins, and under the EP cases on race-conscious redistricting (Miller v. Johnson, etc.) the test for application of strict scrutiny is if race is the "predominant" factor, shouldn't the Court be applying a predominant-factor test rather than a but-for test when interpreting Section 1981?

Posted by: Mark Weber | Mar 26, 2020 7:40:55 AM

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