Tuesday, March 24, 2020
There is an unresolved question about whether McDonnell Douglas is procedural or substantive for purposes of Erie analysis. Today, the Sixth Circuit held that it did not need to resolve this question when analyzing a claim under the Kentucky Civil Rights Act. The Sixth Circuit held that Kentucky state courts would also apply McDonnell Douglas to state law claims, so there was no conflict between federal and state law. A link to the case, Turner v. Marathon Petroleum Company, LP, is here: https://www.opn.ca6.uscourts.gov/opinions.pdf/20a0169n-06.pdf
Readers should note that this issue may be less straightforward in some cases. Even if a state does generally apply McDonnell Douglas to its discrimination statute, state and federal versions of McDonnell Douglas have developed differently over time. Some states have more restrictive or more expansive versions of the McDonnell Douglas test than the versions used by federal courts. Given the discrepancies and circuit splits that have occurred over time, McDonnell Douglas is not truly one unified test, but an umbrella term that describes many different tests. There are currently circuit splits on a number of different aspects of the test.
Hat tip to my colleague Michael Solimine for alerting me to this case.