Retiring McDonnell Douglas

By Anne King

In a recent Title VII decision, Coleman v. Donahoe, Judge Diane Wood wrote a very interesting special concurrence calling for the end of the McDonnell Douglas burden shifting framework.  (The Outten & Golden Employment Law Blog recently highlighted the Wood concurrence.) McDonnell Douglas v. Green established the familiar three-step framework for proving employment discrimination under Title VII and analogous civil rights laws. In the first step, the plaintiff establishes a prima facie case of discrimination. The burden of production then shifts to the employer for the second step, at which point the employer must proffer a nondiscriminatory reason for the adverse employment action. The employee bears the burden of production for the third step, which requires a showing that the employer’s nondiscriminatory reason is actually a pretext for discrimination.

In announcing the McDonnell Douglas approach, the Supreme Court’s intention was to assist plaintiffs by setting out a roadmap for proving employment discrimination via circumstantial evidence.  But in practice the rigidity of McDonnell Douglas burden shifting all too often creates barriers for plaintiffs, because good evidence of discrimination won’t always fit neatly into the three-step framework.

McDonnell Douglas, decided in 1973, is now almost four decades years old (although the Court did tweak the framework 20 years ago in St. Mary’s Honor Center v. Hicks, which  made it tougher for plaintiffs to show pretext).  Judge Wood makes the case that “Perhaps McDonnell Douglas was necessary nearly 40 years ago, when Title VII litigation was still relatively new in the federal courts.  By now, however, as this case well illustrates, the various tests that we insist lawyers use have lost their utility.  Courts manage tort litigation every day without the ins and outs of these methods of proof, and I see no reason why employment discrimination litigation could not be handled in the same straightforward way.”

Judge Wood’s recommendation to retire McDonnell-Douglas makes good sense, although a careful circuit-by-circuit review of employment discrimination precedents is necessary before concluding that wholesale abandonment of the framework would be a positive move for plaintiffs.  But Judge Wood’s concurrence also suggests a broader question: What is the appropriate lifespan for judge-made rules and frameworks?  And, on a related note, what factors suggest that it’s time to abandon such a rule?  Retiring certain judge-made rules – Miranda or the exclusionary rule, for example – may never be appropriate.  But perhaps, given changes in the workplace and the courts’ familiarity with employment discrimination law, McDonnell Douglas is no longer truly necessary.

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