Tuesday, June 9, 2020

2019-20 McDonnell Douglas Updates

Each year, I read every single U.S. Supreme Court, federal appellate court, and state Supreme Court opinion citing McDonnell Douglas, as well as all legal scholarship discussing the test. Here are the significant McDonnell Douglas developments from May of 2019 until now.

  • The Seventh Circuit continues to be on fire with another must-read opinion about McDonnell Douglas. In Joll v. Valparaiso Cmty. Sch., 953 F.3d 923, 929 (7th Cir. 2020), the court again tried to put McDonnell Douglas in perspective and to accurately describe it. The court emphasized that in many discrimination cases, the primary question is causation: “whether a statutorily proscribed factor caused” the challenged outcome. The court emphasized that both direct and circumstantial evidence can be used to support a discrimination claim. The Seventh Circuit emphasized that a litigant, may, but is not required to, enlist McDonnell Douglas to prove the plaintiff’s claim. If the plaintiff does not enlist McDonnell Douglas, the plaintiff may provide either direct or circumstantial evidence that supports an inference of discrimination. A court is required to view all of the plaintiff’s evidence in its totality. Joll follows the Seventh Circuit’s other significant McDonnell Douglas cases: Ortiz v. Werner Enterprises, Inc., 834 F.3d 760 (7th Cir. 2016) and Judge Wood’s concurring opinion in Coleman v. Donahoe, 667 F.3d 835, 863 (7th Cir. 2012).
  • Last year, I mentioned Katie Eyer’s excellent article, The Return of the Technical McDonnell Douglas Paradigm. In that article, Professor Eyer argues that appellate courts have created an overly technical version of McDonnell Douglas that contradicts multiple Supreme Court cases. That article is now available at 94 Wash. L. Rev. 967 (2019).
  • Courts continue to struggle with how to incorporate “but for” cause into the McDonnell Douglas construct for ADEA claims, retaliation claims (and now Section 1981 claims). Most courts place “but for” cause in the pretext prong of the test. Some strangely place it in the prima facie case. If the plaintiff proves that her protected trait or protected activity was the “but for” cause of an outcome in the prima facie case, it is unclear why the court would need to proceed through the rest of the McDonnell Douglas test, as the plaintiff proved a violation of the federal discrimination statutes. Garcia v. Prof’l Contract Servs., Inc., 938 F.3d 236, 242 (5th Cir. 2019), extensively discusses this issue in a False Claims Act case.
  • In Babb v. Wilkie, 140 S. Ct. 1168 (2020), the Supreme Court held that plaintiffs proceeding under the ADEA’s federal sector provision are not required to establish “but for” cause to establish liability. Litigants proceeding on such claims should be allowed to prove their cases through McDonnell Douglas; however, it is too early to determine how or whether courts will modify the framework given the lower causal standard.
  • Bruce N. Cameron and Blaine L. Hutchison wrote an interesting article discussing how the courts have failed to reconcile McDonnell Douglas and religious discrimination cases post-Abercrombie. Thinking Slow About Abercrombie & Fitch: Straightening Out the Judicial Confusion in the Lower Courts, 46 L. Rev. 471 (2019) (analyzing how McDonnell Douglas intersects with Abercrombie and noting that second step may require employer to bear both burden of production and persuasion on undue hardship).
  • In a prior blog post, I discussed the Supreme Court’s opinion in Comcast v. National Association of African-American Owned Media and McDonnell Douglas. https://lawprofessors.typepad.com/laborprof_blog/2020/03/comcast-and-mcdonnell-douglas.html

Comprehensive coverage of all things McDonnell Douglas is available in McDonnell Douglas: The Most Important Case in Discrimination Law (Bloomberg 2018) (updated annually). This book is available free to law students and law professors with a Bloomberg subscription here: https://www.bloomberglaw.com/page/books_treatises_home

Sandra Sperino


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