Wednesday, February 23, 2022
The McDonnell Douglas test is one framework that courts use to analyze discrimination cases. The Supreme Court enunciated the test in 1973, and even though the Court has decided several cases to clarify the test, confusion remains. Two recent articles explore the tension between McDonnell Douglas and how the Supreme Court discussed causation in the Bostock opinion. One way of looking at McDonnell Douglas is that it helpfully avoids the specific factual cause inquiry in favor of a sometimes looser, less-defined causal inquiry. However, it may also unhelpfully limit how the courts view causation and discrimination.
Professor Deb Widiss takes the latter view in her excellent new article, Proving Discrimination by the Text, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3858921, and Noelle Wyman's student note argues that Bostock signals the end of McDonnell Douglas in Because of Bostock, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3913277.