Is McDonnell Douglas in for a Bumpy Ride?

Until recently, the McDonnell-Douglas framework provided a universally accepted standard for determining whether an employee's indirect discrimination claim could survive summary judgment. Under the framework, the employee must first establish a prima facie case of discrimination by showing that: 1) she belongs to a protected class; 2) she was qualified for the position in question; 3) she suffered some adverse employment action; and 4) the employer treated similarly situated employees outside the protected class differently. After the employee establishes each of these elements, there is a presumption of unlawful discrimination.

Employers rely on the similarly situated employee element of the test as a principal method for defeating indirect discrimination claims at the summary judgment stage. Employees often establish the first three elements of the prima facie test, but employees are often unable to identify similarly situated employees outside the protected class who were treated differently. See, e.g., Fane v. Locke Reynolds, LLP, 480 F.3d 534, 540 (7th Cir. 2007) (holding that employee failed to identify similarly situated employees who were treated more favorably to support race discrimination claim).

To show that another employee is similarly situated, the plaintiff is generally required to show that the other purported comparators “dealt with the same supervisor, were subject to the same standards, and had engaged in similar conduct without such differentiating or mitigating circumstances as would distinguish their conduct or the employer's treatment of them.” See Radue v. Kimberly-Clark Corp., 219 F.3d 612, 617-18 (7th Cir. 2000); Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992). Although the plaintiff need not show that the comparators are directly comparable, courts sometimes construe this element narrowly, making it difficult for plaintiffs to satisfy the similarly situated employee requirement. See, e.g., Bobo v. United Parcel Serv., Inc., 665 F.3d 741, 749 (6th Cir. 2012).

If the plaintiff establishes a prima facie case of discrimination, the employer then has the burden of production to show a non-discriminatory reason for the adverse employment action. Failure to present a legitimate non-discriminatory reason for the adverse employment action will result in a denial of the employer's summary judgment motion. But if the employer fulfills its burden of production, the plaintiff again has the burden of showing that the employer's purported reason for the adverse action is a pretext.

Coleman v. Donahoe

Courts have applied the McDonnell-Douglas framework countless times. However, a recent concurring opinion in Coleman v. Donahoe, 667 F.3d 835 (7th Cir. 2012), questioned McDonnell Douglas's utility. In Coleman, an African-American postal worker with 32 years of experience sued the United Stated Postal Service (USPS), alleging that she was terminated for racial discrimination, among other reasons. The plaintiff was terminated after her psychiatrist disclosed that Ms. Coleman had thoughts about killing her supervisor. USPS argued that the plaintiff was terminated for violating a “zero-tolerance” policy against threats or violent behavior.

The plaintiff argued that similarly situated employees were treated more favorably and that USPS's stated reason for her termination was a pretext. In support of this argument, Ms. Coleman offered evidence that USPS issued one-week suspensions to two white male employees after they threatened a co-worker at knifepoint. The district court granted summary judgment for USPS, noting that the plaintiff could not make out a prima facie case for discrimination because the proposed comparators were not similarly situated employees.

On appeal, the Seventh Circuit reversed summary judgment on plaintiff's discrimination claim. The Seventh Circuit held that plaintiff's use of two white male employees as comparators was sufficient to establish a prima facie case of discrimination. Although the comparators had a different supervisor and held different job titles, all three employees worked under the same ultimate decision-maker and were subject to the same rules and disciplinary standards. Further, in the eyes of the appellate court, the proposed comparators' conduct was at least as serious as the plaintiff's conduct.

The Seventh Circuit also held that the plaintiff presented sufficient evidence of pretext to avoid summary judgment. The court noted that a plaintiff alleging discrimination may rely on comparator evidence to both establish a prima facie case of discrimination and show pretext. Accordingly, the plaintiff could also use the comparator evidence to show that USPS's proffered reason for firing her was a pretext. The court added that there was not enough evidence for USPS to conclude that the plaintiff's statements constituted a true threat or that she posed a danger. Ms. Coleman's statements were made during a counseling session, and the psychiatrist indicated that Ms. Coleman was not a threat to others when she released her to return to work. If the employer had legitimate concerns it could have subjected Ms. Coleman to a fitness for duty exam. Accordingly, the plaintiff was able to show that USPS's justification was a pretext, and the Seventh Circuit reversed summary judgment on the discrimination claim.

In a short concurring opinion, Judge Wood expressed her concern over the “snarls and knots” currently facing courts and litigants when deciding discrimination cases. McDonnell Douglas's original intent was to “simplify the plaintiff's task in presenting [a discrimination] case.” But Judge Wood noted that since McDonnell Douglas, the methods for deciding discrimination and retaliation claims have become complicated. Not only is there now a direct and indirect method for proving discrimination, but also a “direct method [that] permits proof using circumstantial evidence,” which requires courts “to see if a 'convincing mosaic' can be assembled” to show direct discrimination. Additionally, as noted in the majority opinion, in indirect discrimination cases, evidence of a prima facie case of discrimination (such as comparator evidence) is “equally helpful for showing pretext.”

Frustrated with the varied methods for deciding discrimination claims, Judge Wood went on to question the utility of the McDonnell-Douglas framework. While Judge Wood noted that “[p]erhaps McDonnell Douglas was necessary nearly 40 years ago, when Title VII litigation was still relatively new in the federal courts,” now, “the various tests that we insist lawyers use have lost their utility.”

Judge Wood proposed a new summary judgment standard for deciding employment discrimination and retaliation claims that requires the plaintiff to “present evidence showing that she is in a class protected by the statute, that she suffered the requisite adverse action (depending on her theory), and that a rational jury could conclude that the employer took that adverse action on account of her protected class, not for any non-invidious reason.”

Analysis

Despite Judge Wood's concurrence, McDonnell Douglas will likely remain the standard for deciding indirect discrimination claims. Any positive aspects of Judge Wood's proposed summary judgment standard are far exceeded by McDonnell Douglas's precedential value.

Judge Wood's proposed standard is not without merit. As she noted in her concurrence, similar standards are already being used by courts to decide direct and indirect discrimination cases at the trial stage. For example, the Seventh Circuit's pattern jury instructions require the plaintiff to “prove by a preponderance of the evidence that he was [discriminated against] by the Defendant because of his [protected class].” Fed. Civ. J. Instructions of the Seventh Circuit, ' 3.01 (2009). This trial stage standard is not unlike Judge Wood's proposed summary judgment standard, suggesting that courts would easily adapt to the new standard. And the proposed standard is a simpler method for deciding discrimination claims. Rather than forcing courts and litigants to determine the appropriate discrimination standard for a particular case, the standard would apply to both indirect and direct discrimination claims. The shorter three-part test would also allow courts to focus on the central issue of whether the plaintiff could convince a rational jury that she suffered adverse employment action because of her protected status.

However, despite the simplicity of the proposed standard, there is still reason for McDonnell Douglas to endure. First, stare decisis requires lower courts to follow Supreme Court precedent. When this presumption is coupled with the nearly 40 years of case law interpreting McDonnell Douglas, the possibility that courts will abandon the framework because a simpler standard is proposed seems unlikely. Moreover, there would be nothing to prevent courts from complicating Judge Wood's proposed standard over time as they have with McDonnell Douglas.

Additionally, as noted, Judge Wood's motivation for proposing this new standard was not to repair the current McDonnell Douglas standard. Instead, she sought to simplify a working standard. Because the current framework functions properly, there is no reason for courts to abandon McDonnell Douglas.

Furthermore, the concurrence is not binding authority and has not affected the manner in which courts decide indirect discrimination claims. As noted above, the majority in Coleman applied McDonnell Douglas. And the Seventh Circuit has continued to apply the McDonnell-Douglas framework in indirect discrimination cases, even in cases where the circuit court has acknowledged flaws with the current standard. See Good v. Univ. of Chicago Med. Ctr., 11-2679, 2012 WL 763091 (7th Cir. Mar. 12, 2012) (noting that the “direct and indirect methods for proving and analyzing employment discrimination cases ' have become too complex, too rigid, and too far removed from the statutory question of discriminatory causation,” but applying McDonnell Douglas to decide against the plaintiff in a reverse racial discrimination claim). See also Luster v. Ill. Dept. of Corrections, 652 F.3d 726 (7th Cir. 2011) (acknowledging that the framework is not perfect but noting that McDonnell Douglas “remains the law of the land for handling cases without direct evidence of discrimination”).

Broadened Scope

Confirming that McDonnell Douglas remains good law, two circuit courts recently expanded its scope to apply to ADEA and FMLA claims. Earlier this year, the Sixth Circuit decided Donald v. Sybra, 667 F.3d 757 (6th Cir. 2012), in which it affirmed the district court's use of McDonnell Douglas to decide the defendant's summary judgment motion in an FMLA interference claim. Although the Sixth Circuit had not explicitly applied McDonnell Douglas to an FMLA interference claim in the past, the court noted that it had “effectively adopted the McDonnell Douglas tripartite test without saying as much.” Accordingly, the Sixth Circuit held that McDonnell Douglas was the correct test for the district court to use when deciding the defendant's summary judgment motion.

Likewise, the Ninth Circuit recently affirmed that the burden-shifting framework applies to age discrimination claims. See Shelley v. Geren, 666 F.3d 599 (9th Cir. 2012). Though the Ninth Circuit had not considered whether McDonnell Douglas continued to apply to ADEA claims following the Supreme Court's decision in Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009), in line with several other circuit courts, the Ninth Circuit held that “nothing in Gross overruled our cases utilizing this framework to decide summary judgment motions in ADEA cases.” Accordingly, the court affirmed that McDonnell Douglas applies in age discrimination cases.

Therefore, although Judge Wood's concurrence may appeal to some, employers and employment attorneys can assume that it is unlikely that courts will cease using McDonnell Douglas to decide indirect discrimination cases in the near future. Even those courts that have questioned McDonnell Douglas's utility, like the Seventh Circuit, acknowledge that they are required to apply McDonnell Douglas. And with a consensus among the circuit courts that McDonnell Douglas remains effective, there is no reason to believe that the Supreme Court will overturn the framework any time soon. But should other circuit courts begin to question the utility of McDonnell Douglas, the Supreme Court may eventually grant certiorari to reconsider whether it remains the appropriate test.

Ralph A. Morris, a member of this newsletter's Board of Editors, is Of Counsel to Schiff Hardin in its Chicago Office. Alexis Dominguez is an associate with the firm.

The long-standing practice of resolving Title VII indirect discrimination claims through summary judgment using the McDonnell-Douglas framework has recently come under fire. For nearly 40 years, employers and employment attorneys have relied on the framework created by the Supreme Court in McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973) to resolve indirect discrimination claims. But a recent decision from the Seventh Circuit has raised concern over the permanence of McDonnell Douglas. See Coleman v. Donahoe , 667 F.3d 835 (7th Cir. 2012).

Judge Diane Wood's concurrence in Coleman calls into question McDonnell Douglas's utility, and proposes an alternative standard for deciding employment discrimination claims. While the simplicity of the proposed standard is appealing, change is unlikely to come quickly. In fact, appellate courts are still broadening the scope of McDonnell Douglas, which is ' and for the foreseeable future will likely continue to be ' the accepted standard for deciding indirect employment discrimination claims through summary judgment.

Burden-Shifting Framework

Until recently, the McDonnell-Douglas framework provided a universally accepted standard for determining whether an employee's indirect discrimination claim could survive summary judgment. Under the framework, the employee must first establish a prima facie case of discrimination by showing that: 1) she belongs to a protected class; 2) she was qualified for the position in question; 3) she suffered some adverse employment action; and 4) the employer treated similarly situated employees outside the protected class differently. After the employee establishes each of these elements, there is a presumption of unlawful discrimination.

Employers rely on the similarly situated employee element of the test as a principal method for defeating indirect discrimination claims at the summary judgment stage. Employees often establish the first three elements of the prima facie test, but employees are often unable to identify similarly situated employees outside the protected class who were treated differently. See, e.g., Fane v. Locke Reynolds, LLP , 480 F.3d 534, 540 (7th Cir. 2007) (holding that employee failed to identify similarly situated employees who were treated more favorably to support race discrimination claim).

To show that another employee is similarly situated, the plaintiff is generally required to show that the other purported comparators “dealt with the same supervisor, were subject to the same standards, and had engaged in similar conduct without such differentiating or mitigating circumstances as would distinguish their conduct or the employer's treatment of them.” See Radue v. Kimberly-Clark Corp. , 219 F.3d 612, 617-18 (7th Cir. 2000); Mitchell v. Toledo Hosp. , 964 F.2d 577, 583 (6th Cir. 1992). Although the plaintiff need not show that the comparators are directly comparable, courts sometimes construe this element narrowly, making it difficult for plaintiffs to satisfy the similarly situated employee requirement. See, e.g., Bobo v. United Parcel Serv., Inc. , 665 F.3d 741, 749 (6th Cir. 2012).

If the plaintiff establishes a prima facie case of discrimination, the employer then has the burden of production to show a non-discriminatory reason for the adverse employment action. Failure to present a legitimate non-discriminatory reason for the adverse employment action will result in a denial of the employer's summary judgment motion. But if the employer fulfills its burden of production, the plaintiff again has the burden of showing that the employer's purported reason for the adverse action is a pretext.

Coleman v. Donahoe

Courts have applied the McDonnell-Douglas framework countless times. However, a recent concurring opinion in Coleman v. Donahoe , 667 F.3d 835 (7th Cir. 2012), questioned McDonnell Douglas's utility. In Coleman, an African-American postal worker with 32 years of experience sued the United Stated Postal Service (USPS), alleging that she was terminated for racial discrimination, among other reasons. The plaintiff was terminated after her psychiatrist disclosed that Ms. Coleman had thoughts about killing her supervisor. USPS argued that the plaintiff was terminated for violating a “zero-tolerance” policy against threats or violent behavior.

The plaintiff argued that similarly situated employees were treated more favorably and that USPS's stated reason for her termination was a pretext. In support of this argument, Ms. Coleman offered evidence that USPS issued one-week suspensions to two white male employees after they threatened a co-worker at knifepoint. The district court granted summary judgment for USPS, noting that the plaintiff could not make out a prima facie case for discrimination because the proposed comparators were not similarly situated employees.

On appeal, the Seventh Circuit reversed summary judgment on plaintiff's discrimination claim. The Seventh Circuit held that plaintiff's use of two white male employees as comparators was sufficient to establish a prima facie case of discrimination. Although the comparators had a different supervisor and held different job titles, all three employees worked under the same ultimate decision-maker and were subject to the same rules and disciplinary standards. Further, in the eyes of the appellate court, the proposed comparators' conduct was at least as serious as the plaintiff's conduct.

The Seventh Circuit also held that the plaintiff presented sufficient evidence of pretext to avoid summary judgment. The court noted that a plaintiff alleging discrimination may rely on comparator evidence to both establish a prima facie case of discrimination and show pretext. Accordingly, the plaintiff could also use the comparator evidence to show that USPS's proffered reason for firing her was a pretext. The court added that there was not enough evidence for USPS to conclude that the plaintiff's statements constituted a true threat or that she posed a danger. Ms. Coleman's statements were made during a counseling session, and the psychiatrist indicated that Ms. Coleman was not a threat to others when she released her to return to work. If the employer had legitimate concerns it could have subjected Ms. Coleman to a fitness for duty exam. Accordingly, the plaintiff was able to show that USPS's justification was a pretext, and the Seventh Circuit reversed summary judgment on the discrimination claim.

In a short concurring opinion, Judge Wood expressed her concern over the “snarls and knots” currently facing courts and litigants when deciding discrimination cases. McDonnell Douglas's original intent was to “simplify the plaintiff's task in presenting [a discrimination] case.” But Judge Wood noted that since McDonnell Douglas, the methods for deciding discrimination and retaliation claims have become complicated. Not only is there now a direct and indirect method for proving discrimination, but also a “direct method [that] permits proof using circumstantial evidence,” which requires courts “to see if a 'convincing mosaic' can be assembled” to show direct discrimination. Additionally, as noted in the majority opinion, in indirect discrimination cases, evidence of a prima facie case of discrimination (such as comparator evidence) is “equally helpful for showing pretext.”

Frustrated with the varied methods for deciding discrimination claims, Judge Wood went on to question the utility of the McDonnell-Douglas framework. While Judge Wood noted that “[p]erhaps McDonnell Douglas was necessary nearly 40 years ago, when Title VII litigation was still relatively new in the federal courts,” now, “the various tests that we insist lawyers use have lost their utility.”

Judge Wood proposed a new summary judgment standard for deciding employment discrimination and retaliation claims that requires the plaintiff to “present evidence showing that she is in a class protected by the statute, that she suffered the requisite adverse action (depending on her theory), and that a rational jury could conclude that the employer took that adverse action on account of her protected class, not for any non-invidious reason.”

Analysis

Despite Judge Wood's concurrence, McDonnell Douglas will likely remain the standard for deciding indirect discrimination claims. Any positive aspects of Judge Wood's proposed summary judgment standard are far exceeded by McDonnell Douglas's precedential value.

Judge Wood's proposed standard is not without merit. As she noted in her concurrence, similar standards are already being used by courts to decide direct and indirect discrimination cases at the trial stage. For example, the Seventh Circuit's pattern jury instructions require the plaintiff to “prove by a preponderance of the evidence that he was [discriminated against] by the Defendant because of his [protected class].” Fed. Civ. J. Instructions of the Seventh Circuit, ' 3.01 (2009). This trial stage standard is not unlike Judge Wood's proposed summary judgment standard, suggesting that courts would easily adapt to the new standard. And the proposed standard is a simpler method for deciding discrimination claims. Rather than forcing courts and litigants to determine the appropriate discrimination standard for a particular case, the standard would apply to both indirect and direct discrimination claims. The shorter three-part test would also allow courts to focus on the central issue of whether the plaintiff could convince a rational jury that she suffered adverse employment action because of her protected status.

However, despite the simplicity of the proposed standard, there is still reason for McDonnell Douglas to endure. First, stare decisis requires lower courts to follow Supreme Court precedent. When this presumption is coupled with the nearly 40 years of case law interpreting McDonnell Douglas, the possibility that courts will abandon the framework because a simpler standard is proposed seems unlikely. Moreover, there would be nothing to prevent courts from complicating Judge Wood's proposed standard over time as they have with McDonnell Douglas.

Additionally, as noted, Judge Wood's motivation for proposing this new standard was not to repair the current McDonnell Douglas standard. Instead, she sought to simplify a working standard. Because the current framework functions properly, there is no reason for courts to abandon McDonnell Douglas.

Furthermore, the concurrence is not binding authority and has not affected the manner in which courts decide indirect discrimination claims. As noted above, the majority in Coleman applied McDonnell Douglas. And the Seventh Circuit has continued to apply the McDonnell-Douglas framework in indirect discrimination cases, even in cases where the circuit court has acknowledged flaws with the current standard. See Good v. Univ. of Chicago Med. Ctr., 11-2679, 2012 WL 763091 (7th Cir. Mar. 12, 2012) (noting that the “direct and indirect methods for proving and analyzing employment discrimination cases ' have become too complex, too rigid, and too far removed from the statutory question of discriminatory causation,” but applying McDonnell Douglas to decide against the plaintiff in a reverse racial discrimination claim). See also Luster v. Ill. Dept. of Corrections , 652 F.3d 726 (7th Cir. 2011) (acknowledging that the framework is not perfect but noting that McDonnell Douglas “remains the law of the land for handling cases without direct evidence of discrimination”).

Broadened Scope

Confirming that McDonnell Douglas remains good law, two circuit courts recently expanded its scope to apply to ADEA and FMLA claims. Earlier this year, the Sixth Circuit decided Donald v. Sybra , 667 F.3d 757 (6th Cir. 2012), in which it affirmed the district court's use of McDonnell Douglas to decide the defendant's summary judgment motion in an FMLA interference claim. Although the Sixth Circuit had not explicitly applied McDonnell Douglas to an FMLA interference claim in the past, the court noted that it had “effectively adopted the McDonnell Douglas tripartite test without saying as much.” Accordingly, the Sixth Circuit held that McDonnell Douglas was the correct test for the district court to use when deciding the defendant's summary judgment motion.

Likewise, the Ninth Circuit recently affirmed that the burden-shifting framework applies to age discrimination claims. See Shelley v. Geren , 666 F.3d 599 (9th Cir. 2012). Though the Ninth Circuit had not considered whether McDonnell Douglas continued to apply to ADEA claims following the Supreme Court's decision in Gross v. FBL Fin. Servs., Inc. , 557 U.S. 167 (2009), in line with several other circuit courts, the Ninth Circuit held that “nothing in Gross overruled our cases utilizing this framework to decide summary judgment motions in ADEA cases.” Accordingly, the court affirmed that McDonnell Douglas applies in age discrimination cases.

Therefore, although Judge Wood's concurrence may appeal to some, employers and employment attorneys can assume that it is unlikely that courts will cease using McDonnell Douglas to decide indirect discrimination cases in the near future. Even those courts that have questioned McDonnell Douglas's utility, like the Seventh Circuit, acknowledge that they are required to apply McDonnell Douglas. And with a consensus among the circuit courts that McDonnell Douglas remains effective, there is no reason to believe that the Supreme Court will overturn the framework any time soon. But should other circuit courts begin to question the utility of McDonnell Douglas, the Supreme Court may eventually grant certiorari to reconsider whether it remains the appropriate test.

Ralph A. Morris, a member of this newsletter's Board of Editors, is Of Counsel to Schiff Hardin in its Chicago Office. Alexis Dominguez is an associate with the firm.