Change to Employment Discrimination Lawsuits

Feb 2, 2017


Attorneys Alan Rupe and Jeremy Schrag, of the Kansas law firm Lewis Brisbois Bisgaard & Smith LLP, recently commented in Law360, by Portfolio Media in New York (January 31, 2017, 11:10 PM EST) that an important right for employees may soon be laid to rest, changing employment discrimination lawsuits.

The McDonnell Douglas Test Used in Employment Discrimination

The McDonnell Douglas test is a framework used in employment discrimination cases to determine whether an employee has offered sufficient circumstantial evidence to allow the claim to survive a motion from the defense requesting the judge to simply kick you out of court. The test is named after the U.S. Supreme Court opinion in which it was created — McDonnell Douglas Corp. v. Green in 1973.

Of course, it is rare to have direct evidence of discrimination. People rarely leave around notes describing their motive is illegal discrimination and, most often, they have enough sense not to say blatantly racist or sexist things.  So McDonnel established a way for the employee to proceed: They have the initial burden to show:

  • they belongs to a protected class, such as a racial minority or a qualified individual with a disability;
  • that they were qualified for the employment benefit at issue
  • they suffered adverse employment action;
  • they were treated less favorably than others outside their protected class.

If they could meet this relatively easy burden, the burden is then shifted to the employer to articulate a “legitimate, nondiscriminatory reason” for the adverse employment action. If the employer does that, the burden then shifts one final time to the employee, who now must show that

  • the employer’s proffered reason is false or “pretext” for discrimination.

Criticism of The McDonnell Douglas Test

Prior to Trump, the McDonnell Douglas test has been bedrock employment law doctrine. But Judge Neil Gorsuch, President Donald Trump’s nominee to fill Justice Antonin Scalia’s vacancy on the U.S. Supreme Court, is not a fan of the protections provided by McDonnell Douglas.  As a potential Supreme Court Justice, he may become one of the first critics of the test to be in a position to actually change or eliminate it. Gorsuch has never stated how he would revise (or replace) the McDonnell Douglas test, but any revision of McDonnell Douglas, however small, would cause a significant change in how employment discrimination lawsuits are prosecuted and defended.

Brad’s tip: If you are a federal employee, possess some type of medical or emotional condition, and are concerned about the stability of your job perhaps you should call for a free consultation in order to exercise your rights before you lose them. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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