A growing number of federal appeals court rulings are identifying issues with the application of a long-standing US Supreme Court burden-shifting standard that is crucial in employment discrimination cases. This has triggered a renewed debate regarding the utility of the framework.
The standard in question, set forth in the 1973 McDonnell Douglas Corp. v. Green decision, provides a three-step alternative method for plaintiffs to prove workplace bias in the absence of direct evidence, such as explicit discriminatory statements related to race, gender, or other protected characteristics. Specifically, it involves alternating the burden of proof between the plaintiff and the employer to establish whether an adverse employment action was due to unlawful discrimination.
This burden-shifting test has served as a cornerstone in employment discrimination litigation for decades. However, recent rulings, like those from the federal appeals court in September, have highlighted inconsistencies and potential misapplications of the standard, causing further division among the plaintiff’s bar regarding its efficacy and relevance in contemporary legal practice.
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