In Lewis v. City of Union City, No. 15-11362 (Mar. 21, 2019) (en banc), the Eleventh Circuit has adopted a new legal standard that will likely make it much more difficult for plaintiffs to prevail in intentional discrimination cases under Title VII of the Civil Rights Act of 1964 and other EEO laws. In the view of the Eleventh Circuit, absent direct evidence, a plaintiff establishes a prima facie case of discrimination only by presenting evidence that the employer treated her worse than others outside her protected class who are similar to her in all material respects. By making the plaintiff identify from the get-go someone who is similar to her in all material respects, the plaintiff will effectively have to eliminate any good reason for treating her less favorably. In other words, she'll have to prove a negative.
The Eleventh Circuit's decision is an interpretation of the Supreme Court's 1973 decision in McDonnell Douglas v. Green, the most important decision in all of EEO law. In 1999, the Eleventh Circuit noted in Wright v. Southland Corp. that the McDonnell Douglas decision was intended to make it somewhat easier for a plaintiff alleging discrimination to prevail without having to rely solely on the "traditional" framework for establishing causation. Thus, in McDonnell Douglas, the Supreme Court held that a plaintiff can establish a prima facie case, or presumption, of discrimination. In Lewis, the Eleventh Circuit has eliminated any advantage that a plaintiff might have in relying on McDonnell Douglas, by making it much harder for a plaintiff to establish a presumption of discrimination.
Given how out of step the Lewis decision is, it may not be long for this world. Still, the Eleventh Circuit may not be alone in perceiving McDonnell Douglas as an unjustified boon to plaintiffs. Justice Gorsuch has argued that the framework it established should be abandoned. So even if the Eleventh Circuit got it wrong, some Justices may at least think that it was on the right track.
Update - 8/25/19: Although the en banc court rejected the plaintiff's claim under the McDonnell Douglas framework, the panel ruled for the plaintiff on remand under the "convincing mosaic" theory of discrimination. What's constitutes a "convincing mosaic"? The answer is that it's essentially whatever you think it is. And that's the problem, it's meaningless. Contrary to the Eleventh Circuit's view, there is no convincing mosaic theory of discrimination. The term originated in a line of cases by the Seventh Circuit, which recently clarified that "convincing mosaic" is not a legal test. Unfortunately, the Eleventh Circuit didn't get the message and made the colossal mistake of treating "convincing mosaic" as an independent framework for establishing discrimination. The en banc decision was a disaster, but the panel's remand decision is far worse.
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.