The erosion of McDonnell Douglas: What employers should know

For decades, courts have relied on the McDonnell Douglas burden-shifting framework as the primary method for evaluating employment discrimination claims based on circumstantial evidence. As I discussed earlier this year, Supreme Court Justice Clarence Thomas has repeatedly encouraged litigants to directly challenge whether McDonnell Douglas has any continuing role in Title VII litigation, noting that the framework has no basis in the text of Title VII and may distort the analysis of discrimination claims for summary judgment purposes.

Two recent developments, one from the U.S. Supreme Court and another from the U.S. Court of Appeals for the Eleventh Circuit, underscore that McDonnell Douglas is under growing strain and that employers should be cautious about relying too heavily on “pretext” as a silver bullet.

Supreme Court declines review, but skepticism remains

Earlier this month, the U.S. Supreme Court declined to review Huber v. Westar Foods Inc., a case raising the question of whether courts have gone too far in requiring plaintiffs to disprove an employer’s stated reason for an adverse action in order to survive summary judgment.

The denial of certiorari leaves existing law intact, but it does not resolve a deep and persistent circuit split. Critics argue that some courts apply the “pretext” step of McDonnell Douglas too rigidly. In effect, the critics contend, it requires plaintiffs to “win” their cases at the summary judgment stage rather than simply showing that a reasonable jury could find that the employer had discriminatory intent.

Justice Thomas, joined by Justice Neil Gorsuch, has emphasized that courts routinely decide summary judgment motions without layered evidentiary frameworks and that employment cases should be no different.

Eleventh Circuit emphasizes “Big Picture” approach

In a recent decision from a three-judge panel of the Eleventh Circuit, Ismael v. Sheriff Richard Roundtree, the court reversed a finding of summary judgment in favor of the employer after concluding that the district court improperly treated McDonnell Douglas as a dispositive checklist rather than an evidentiary aid.

In Ismael, the plaintiff alleged that he was retaliated against in violation of 42 U.S.C. Section 1981 – a civil rights statute that applies to race and national origin discrimination using the same standards of proof applied in Title VII cases – after he objected to alleged discriminatory conduct based on his Iraqi national origin. A federal judge in Georgia had granted summary judgment to the defendants, finding that the plaintiff had made out a prima facie case of retaliation and that the defendants had articulated a legitimate, non-retaliatory reason for their conduct, but that the plaintiff had “failed to prove” that the defendants' articulated reason was a pretext for a retaliatory motive.

On appeal, the Eleventh Circuit panel reiterated that once an employer articulates a legitimate, nondiscriminatory reason for its action, the inquiry does not end with whether the plaintiff can directly disprove that reason. Instead, courts must evaluate the entire record to determine whether a reasonable jury could infer unlawful motive. The panel decision noted that the district court erred by focusing too narrowly on whether the employer’s stated explanation was false, rather than assessing the record as a whole. In doing so, the district court improperly discounted circumstantial evidence such as temporal proximity between the protected activity and the adverse employment action, inconsistencies in the employer’s explanations, deviations from standard procedures, and comparator evidence. The Eleventh Circuit further clarified that concepts like the “convincing mosaic” are not separate legal tests, but merely shorthand for the summary judgment requirement that all evidence be considered collectively, not in isolation.

Implications for employers

In light of the current shaky state of McDonnell Douglas, here are some tips for employers defending discrimination claims:

• A plaintiff may not have to show “pretext” to survive summary judgment. Even where an employer’s explanation is legitimate and supported, courts may deny employers’ motions for summary judgment if other evidence supports an inference of discrimination or retaliation.
• Consistency and process matter. Deviations from policies or prior practices, shifting explanations, or inconsistent enforcement can undermine what might have otherwise been a defensible employment decision.
• All relevant circumstances will be taken into account. Courts are increasingly focused on the full narrative surrounding a decision and are not limited to the justifications articulated in litigation.
• Forum matters. The weight courts give to McDonnell Douglas varies by jurisdiction, and employers should calibrate their litigation strategies accordingly.

Conclusion

The role of McDonnell Douglas at summary judgment is clearly being reexamined. Appellate courts are reminding trial courts that the ultimate question is whether a reasonable jury could find unlawful intent based on all of the relevant evidence – not whether the plaintiff can definitively disprove the employer’s defenses at this pretrial stage.

Employers should assume that summary judgment will increasingly turn on the overall factual record and should plan their compliance, documentation, and litigation strategies accordingly.