Workers Chip Away at Decades-Old Workplace Bias Test in Courts

Workers are getting a boost from two conservative US Supreme Court justices to convince federal courts to revisit a long-standing workplace bias standard that historically favored employers.

In June, Justices Clarence Thomas and Neil Gorsuch called for the end of the five-decade-old McDonnell Douglas test, which they criticized as a “judge-made” rule that adds unnecessary burdens on workers attempting to prove their employers discriminated against them.

Since then, the US Courts of Appeals for the Tenth and Fourth circuits have cited the justices to justify relaxing the last part of the three-prong test that requires employees to show that a company’s reasons behind a firing or other adverse job action are a “pretext” for discrimination. Some district courts are split on the issue.

These early rulings portend more judicial conflict across the nation as emboldened workers attack the evidentiary framework established by the high court in 1973’s McDonnell Douglas Corp. v. Green, anti-discrimination law scholars and attorneys said. They also provide fodder for workers to reach trial.

“This is a welcome shift in how evidence of discrimination is being evaluated by courts,” said Leigh Anne St. Charles, a managing partner at Sanford Heisler Sharp McKnight LLC. “The single-minded focus on pretext has historically been a real disadvantage to plaintiffs because it limits plaintiffs to presenting evidence about their employers’ given reasons for a termination or other actions as opposed to looking at the total universe of evidence that might show discrimination.”

Critics of McDonnell Douglas say that the pretext requirement lacks a statutory basis under Title VII of the 1964 Civil Rights Act and undercuts Rule 56 of the Federal Rules of Civil Procedure. That rule governs the summary judgment phase of litigation, where a case can get tossed before trial if it has no factual disputes for a jury to decide.

Litigation Strategy

The McDonnell Douglas test requires a worker to first establish a foundation for a claim, then allows the company to introduce non-discriminatory reasons to counter the allegation, and finally lets the plaintiff put forth evidence that the employer’s reason was a cover-up for bias.

The test was intended to aid plaintiffs seeking jury trials under Title VII, but has since become a defense-bar favorite to challenge the sufficiency of a claim before it progresses to more costly litigation stages.

The recent circuit decisions addressing pretext involved a wide-range of discrimination claims. They included L3Harris Technologies Inc. allegedly firing a worker with cellulitis after denying him an accommodation that would let him book airline seats with extra legroom on long flights; and Morgan State University allegedly paying a female professor less than male colleagues.

The Tenth and Fourth circuits, respectively, allowed the L3Harris worker and the Morgan State professor to proceed to trial. Concurring opinions in both rulings warned against the mechanical application of McDonnell Douglas, emphasizing that judges shouldn’t analyze facts in isolation.

Attorneys said more cases would go to trial if judges consider the totality of discrimination evidence under Rule 56.

A district judge in Tennessee explicitly adopted Thomas’ support for modifying the evidentiary test to deny an employer’s motion for summary judgment. But others in Tennessee, as well as Oklahoma, have rejected workers’ attempts to eliminate the pretext requirement—leaving the question to their appellate courts.

The recent decisions offer a playbook for workers to challenge pretext’s validity, and frame summary judgment arguments as credibility issues better suited for juries to decide, attorneys said.

“I would expect defense counsel to advise their clients that simply relying on the pretext standard may no longer be sufficient for succeeding at summary judgment,” said St. Charles. “There’s going to be a bigger impact on the defense side because their standard may be more difficult on summary judgment” if there’s greater emphasis on comparative and holistic proof and consistency in an employer’s explanation for decision-making, she said.

Some federal appeals courts have long established their own variations in applying McDonnell Douglas.

The Eleventh and Seventh circuits explicitly held that even if the parties argued their case under McDonnell Douglas, there are other methods for looking at disparate treatment bias claims, including examining pieces of evidence concerning discriminatory intent or doing a holistic review, said Sandra Sperino, a discrimination law scholar at the University of Missouri, who tracks related litigation.

Judge-Made ‘By Design’

Legal scholars and attorneys recognize that overturning the framework— or any aspects of it—risks disrupting decades of anti-bias case law beyond Title VII, including the Age Discrimination in Employment Act and the Americans with Disabilities Act. However, they said, uniformity in its application is necessary.

Paul W. Mollica, a civil rights attorney in Chicago, said the complexity of the legal landscape stems from the law’s vague scope.

“Title VII was a novel employment law created in 1964,” making it unlawful for an employer to refuse to hire, discharge, or discriminate against someone based on race, color, religion, sex, or national origin, Mollica said.

However, he added that “Congress did not define ‘discriminate.’”

Lawmakers’ decision to deny the Equal Employment Opportunity Commission “substantive rulemaking authority” under Title VII and the power to adjudicate private-sector bias claims only added further complications, he said.

“This was part of a compromise with conservative lawmakers who worried about a federal agency having broad power to regulate in this sensitive field. The power to interpret Title VII was placed totally in the hands of federal judges,” he said.

“So strictly speaking, everything about Title VII is judge-made,” Mollica added. “That is true by design.”