Tuesday, August 23, 2016

Did the 7th Circuit finally kill McDonnell Douglas?

If you are an employment lawyer, the words “McDonnell Douglas” will bring a sentimental tear to your eye.

For the unfamiliar, the McDonnell Douglas is an evidentiary framework used in discrimination cases, which lack direct evidence of discrimination, to determine whether an employee’s claim should survive summary judgment and proceed to trial. It first asks whether the plaintiff can establish a prima facie case of discrimination—(i) s/he belongs to a protected class; (ii) s/he was qualified for the position; (iii) though qualified, s/he suffered some adverse action; and (iv) the employer treated similarly situated people outside of his/her protected class differently. If the plaintiff satisfies this minimal showing, the burden shifts to the employer to articulate a legitimate non-discriminatory reason for the adverse action. Once the employer makes this articulation, the burden shifts again, back to the plaintiff to show that the employer’s reason is a pretext for discrimination.

It has existed for the past 43 years, until (maybe) last week.

In Ortiz v. Werner Enterprises [pdf], with six sentences the 7th Circuit Court of Appeals may have killed McDonnell Douglas and the 43 years of employment-law jurisprudence that followed.
The burden-shifting framework created by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), sometimes is referred to as an “indirect” means of proving employment discrimination. Today’s decision does not concern McDonnell Douglas or any other burden-shifting framework, no matter what it is called as a shorthand. We are instead concerned about the proposition that evidence must be sorted into different piles, labeled “direct” and “indirect,” that are evaluated differently. Instead, all evidence belongs in a single pile and must be evaluated as a whole. That conclusion is consistent with McDonnell Douglas and its successors.  
With the rat’s nest of surplus “tests” removed from the law of the circuit, we can turn back to Ortiz’s claim and his supporting evidence. Stripped of the layers of tests, our analysis is straightforward.
Thereafter, the Court, in short order, determined that a jury, and not a judge, should decide the fact issue of whether Ortiz’s ethnicity (Hispanic) unlawfully motivated his manager (Lass) and assistant manager (Krikava) to assign him unprofitable loads:

That legal standard … is simply whether the evidence would permit a reasonable factfinder to conclude that the plaintiff’s race, ethnicity, sex, religion, or other proscribed factor caused the discharge or other adverse employment action. …  Relevant evidence must be considered and irrelevant evidence disregarded, but no evidence should be treated differently from other evidence because it can be labeled “direct” or “indirect.” … 
A reasonable juror could infer that Lass and Krikava didn’t much like Hispanics (or Jews, though Ortiz is not Jewish) and tried to pin heavy losses on Ortiz to force him out the door. A juror also might infer that, because of Ortiz’s ethnicity, Werner’s managers fired him for using techniques that were tolerated when practiced by other brokers. In the end a jury might not credit Ortiz’s evidence and could accept Werner’s explanations. But given the conflict on material issues, a trial is necessary.
No prima facie case, no legitimate non-discriminatory reason, and no pretext. Just a common-sense discussion of whether a reasonable juror could conclude that some protected class motivated the decision, or whether one could only conclude that the employer made the decision for legitimate reasons regardless of any protected classes.

Now let’s sit back and see if other circuits follow suit, or if the Supreme Court needs to step in an clarify whether McDonnell Douglas survives.