Saturday, February 11, 2017

Judge Gorsuch and the McDonnell Douglas Framework: Throwing Out the Baby with the Bathwater

Were Supreme Court nominee Neil Gorsuch to have his druthers, courts would ditch the McDonnell Douglas framework. Adopted by the Supreme Court in 1973 in the case of McDonnell Douglas Corp. v. Green, the eponymously named framework is used by courts and juries to evaluate whether a plaintiff's evidence is sufficient to establish that he or she was subjected to intentional discrimination in violation of Title VII of the Civil Rights Act of 1964 or another EEO law. It is hard to overstate the central role played by the McDonnell Douglas framework in the litigation of EEO claims. Doing away with it would be earth-shattering. Extraordinary changes require extraordinary reasons, and as discussed below, I don't believe Gorsuch has provided extraordinary reasons.

The McDonnell Douglas framework has three prongs: 1) the plaintiff establishes a prima facie case, which is essentially a weak presumption that an adverse employment decision was based on a prohibited characteristic, such as sex or race; 2) the defendant rebuts the plaintiff's prima facie case by producing evidence that the adverse employment decision was based on a nondiscriminatory reason, such as job performance; and 3) the plaintiff proves that the employer's asserted reason in prong 2 was a pretext for discrimination based on a prohibited characteristic.

Gorsuch has leveled a number of attacks at the McDonnell Douglas framework in several different decisions, including Paup v. Gear Products Inc., 327 F. App'x 100 (10th Cir. 2009) (per curiam), Barrett v. Salt Lake County, 754 F.3d 864 (10th Cir. 2014), and Walton v. Powell, 821 F.3d 1204 (10th Cir. 2016). This post discusses what I think Gorsuch views as the principal flaws of McDonnell Douglas: one, the framework unnecessarily complicates the legal analysis; and two, the framework does not adequately focus on the ultimate issue of whether there was discrimination.

In Walton, Gorsuch explained why the McDonnell Douglas framework is superfluous:
This court has expressly declined to employ McDonnell Douglas even in Title VII cases at or after trial because of the confusion and complexities its application can invite. In the summary judgment context, too, where McDonnell Douglas is sometimes applied, it is only sometimes applied. We have used McDonnell Douglas in cases relying on circumstantial evidence but we will not use it in cases relying on direct evidence (and so have had to engage in the business of trying to police the often fine line between these kinds of evidence). And still then, in the narrow remaining class of (summary judgment, circumstantial-proof) cases, it may be that McDonnell Douglas is properly used only when the plaintiff alleges a "single" unlawful motive -- and not "mixed motives" -- lurking behind an adverse employment decision. A potentially crippling limitation given that Title VII's statutory language doesn't ever require plaintiffs to establish more than mixed motives to prevail.
Here, Gorsuch has characterized McDonnell Douglas as applicable to only a "narrow" class of cases: summary judgment cases in which there is no direct evidence of discrimination and discrimination is alleged to be the single reason for the challenged employment action. This characterization, however, is flatly incorrect. Direct evidence of discrimination -- the veritable "smoking gun" -- is exceedingly rare. The vast majority of EEO claims involve only circumstantial evidence, such as comparative evidence showing how the employer treats employees of different races. Moreover, as explained in an en banc Third Circuit decision from 1995, Miller v. Cigna Corp., which was joined by then-Judge Samuel Alito, a plaintiff proving discrimination under the McDonnell Douglas framework need not show, as Gorush suggests, that discrimination was the single or sole reason for the challenged decision. A plaintiff need only show that discrimination was a determinative, or but-for, factor in the challenged action.

Indeed, in McDonnell Douglas, the petitioner contended that it refused to rehire Percy Green, an African American mechanic, because he had engaged in illegal activity against the petitioner as part of a protest. In order to prevail on his race discrimination claim, Green was not required to show that the failure to rehire him was not motivated in any part by his unlawful activity. Rather, Green was merely required to show that his race made a difference, meaning that the petitioner would have rehired a white individual who had engaged in comparable misconduct. Green was not required to make the further showing that the petitioner would not have rehired him even if he had not engaged in misconduct. 

Although Gorsuch criticizes McDonnell Douglas for causing confusion, its elimination would only make matters worse. To prevail in some EEO claims, including those alleging age discrimination or retaliation, a plaintiff must establish not merely that a prohibited factor motivated the employer's decision but that it was a but-for factor. If a plaintiff shows, for instance, that his older age was a cause of his termination, he has not necessarily shown that he would not have been fired even if he had been younger, such as for unsatisfactory job performance. As already noted, however, the McDonnell Douglas framework is a recognized method of proving but-for causation. Abandoning it would unleash pandemonium as litigants and courts would be at a loss for how to distinguish but-for causation from lesser forms of causation.

Gorsuch is also incorrect in suggesting that the McDonnell Douglas framework is only relevant in the summary judgment context. In the 2000 decision in Reeves v. Sanderson Plumbing Products, a unanimous Supreme Court applied the McDonnell Douglas framework in upholding a jury verdict under the Age Discrimination in Employment Act:
[A] plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.

This is not to say that such a showing by the plaintiff will always be adequate to sustain a jury's finding of liability. Certainly there will be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant's explanation, no rational factfinder could conclude that the action was discriminatory. For instance, an employer would be entitled to judgment as a matter of law if the record conclusively revealed some other, nondiscriminatory reason for the employer's decision, or if the plaintiff created only a weak issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred. 
As demonstrated by Reeves, the McDonnell Douglas framework guides a factfinder's analysis of the central and overriding issue of whether the plaintiff was subjected to discrimination. 

Contrary to what Gorsuch would have you believe, the McDonnell Douglas framework is not limited to a "narrow" set of EEO claims during a particular phase of a trial. Nor is it limited to claims of intentional discrimination involving a single motive. Rather than creating confusion, the framework provides a structured way to evaluate evidence and determine whether the requisite level of causation is satisfied. If Gorsuch's criticism of McDonnell Douglas seems compelling at first blush, that is only because he has attacked a straw man.

On the other hand, Gorsuch's other main objection to McDonnell Douglas strikes me as having some merit. In an unsigned opinion that Gorsuch joined in Paup, the court stated that it was obliged to apply the McDonnell Douglas framework. Nonetheless, the court observed that because McDonnell Douglas does not require a plaintiff to present any direct evidence of discrimination, the framework has been criticized "as improperly diverting attention away from the real question posed by [an EEO statute] -- whether . . . discrimination actually took place -- and substituting in its stead a proxy that only imperfectly tracks that inquiry."

In the 2010 decision in Gacek v. American Airlines, Inc., the Seventh Circuit likewise observed that the McDonnell Douglas framework strays from traditional tort principles of causation. Rejecting application of the McDonnell Douglas framework to a claim of retaliatory discharge under the Illinois Workers' Compensation Act, the court explained:
[The McDonnell Douglas framework is] designed to make it easier for plaintiffs to withstand summary judgment in discrimination cases, in the belief that "a discrimination suit (unlike, for instance, an action for negligence or breach of contract), puts the plaintiff in the difficult position of having to prove the state of mind of the person making the employment decision. Furthermore, unlike some other torts, in which state of mind can be inferred from the doing of the forbidden act, the employer's state of mind cannot be inferred solely from the fact of the adverse employment action. . . . To make matters somewhat easier for plaintiffs in employment discrimination suits, the Supreme Court, in McDonnell Douglas Corp. v. Green, developed a presumption that supplemented -- but did not replace -- the traditional framework.” Wright v. Southland Corp., 187 F.3d 1287, 1289-90 (11th Cir. 1999).
As suggested by Paup and Gacek, elimination of the McDonnell Douglas framework would likely make it more difficult for plaintiffs to prevail because it would restore default causation standards.

Is it too easy, then, for plaintiffs to establish discrimination under McDonnell Douglas? Reasonable minds can differ. But even if Gorsuch believes that the McDonnell Douglas framework does not adequately track the ultimate issue of discrimination, that problem can be addressed without doing away with the framework altogether.

In her concurrence in Reeves, Justice Ruth Bader Ginsburg stated that "it may be incumbent on the Court, in an appropriate case, to define more precisely the circumstances in which plaintiffs will be required to submit evidence beyond these two categories [a prima facie case and pretext] in order to survive a motion for judgment as a matter of law." Ginsburg added that she "anticipated that such circumstances will be uncommon." If Gorsuch is on the Court when the time comes to define those circumstances more precisely, he might very well disagree with Ginsburg, opting for a wider range of cases in which plaintiffs will have to provide something more. There is no need, however, to throw out the baby with the bathwater.

(For a general discussion of the different ways to establish intentional discrimination under EEO law, including the McDonnell Douglas framework, please see this prior post.)

This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.