Friday, June 25, 2021

McDonnell Douglas Updates

Each year I read all of the cases citing McDonnell Douglas to update my treatise, McDonnell Douglas: The Most Important Case in Discrimination Law (available electronically on Bloomberg). The treatise provides comprehensive coverage of all things McDonnell Douglas. Here are the most important takeaways from this year’s updates.

(1) While most courts articulate a four-part prima facie case, it is worth noting that several appellate courts use a three-part prima facie case. For example, in Chambers v. D.C., 988 F.3d 497, 501 (D.C. Cir. 2021), the court stated that the plaintiff must do the following related to the prima facie case: “allege she is part of a protected class under Title VII, she suffered a cognizable adverse employment action, and the action gives rise to an inference of discrimination. The Tenth Circuit articulated a similar test in Throupe v. Univ. of Denver, 988 F.3d 1243, 1252 (10th Cir. 2021). This prima facie case eliminates the prong of the test that would require a plaintiff to establish she met the employer’s objective, minimum qualifications for the contested position.

(2) In Babb v. Wilkie, the Supreme Court held that a plaintiff is not required to establish “but for” cause to prevail on a federal-sector ADEA claim. In one case, the Eleventh Circuit held that McDonnell Douglas should not apply to federal sector claims after Babb. Malone v. U.S. Att’y Gen., No. 20-12527, 2021 WL 2134850, at *4 (11th Cir. May 26, 2021). In another case, the Eleventh Circuit noted that McDonnell Douglas does not fully capture all the ways a plaintiff can prevail under the ADEA federal sector provision. Troupe v. DeJoy, No. 20-12019, 2021 WL 2530188, at *2 n.4 (11th Cir. June 21, 2021). This issue not only affects the ADEA, but also may come into play with respect to Title VII’s federal-sector provision.

(3) The courts continue to struggle with how to incorporate “but for” cause into McDonnell Douglas for claims under Title VII’s retaliation provision, the ADEA, and Section 1981.

(4) The Tenth Circuit has held that there is no adverse action requirement for a failure to accommodate claim under the Americans with Disabilities Act. Exby-Stolley v. Bd. of Cty. Commissioners, 979 F.3d 784, 797 (10th Cir. 2020).

(5) I found several recent articles helpful when working on the treatise.

William R. Corbett, Intolerable Asymmetry and Uncertainty: Congress Should Right the Wrongs of the Civil Rights Act of 1991, 73 Okla. L. Rev. 419, passim (2021) (discussing McDonnell Douglas and causation).

Joanna Grossman & Gillian Thomas, Making Sure Pregnancy Works: Accommodation Claims After Young v. United Parcel Service, Inc., 14 Harv. L. & Pol’y Rev. 319, 330 (2020) (discussing courts’ use of McDonnell Douglas in pregnancy accommodation cases post-Young).

Charles A. Sullivan, Making Too Much of Too Little?: Why "Motivating Factor" Liability Did Not Revolutionize Title VII, 62 Ariz. L. Rev. 357, 387 (2020) (briefly discussing intersection of motivating factor and McDonnell Douglas).

Suja A. Thomas, The Customer Caste: Lawful Discrimination by Public Businesses, 109 Cal. L. Rev. 141, 161, 193-94 (2021) (discussing use of McDonnell Douglas in public accommodation cases).

Deborah A. Widiss, Proving Discrimination by the Text, __ Minn. L. Rev. __ (forthcoming), available at

-Sandra Sperino

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Interesting, thanks! Re Babb, wouldn't the M-D framework still apply to a federal plaintiff seeking monetary/compensatory damages? My understanding was that federal plaintiffs could use the "easier" causation standard only to the extent they seek just equitable or declarative relief, but if they want money, then they would still need to satisfy the traditional but-for test (and thus the M-D framework).

Posted by: Jeremy | Sep 10, 2021 7:30:12 AM

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