The Inevitable Demise of the disparate application of the McDonnell Douglas framework
The McDonnell Douglas Framework and Reverse Discrimination
Judges use the McDonnell Douglas framework in employment discrimination cases when there is no direct evidence of discrimination. This standard is used in the majority of employment discrimination cases. This framework, established by the Supreme Court in McDonnell Douglas Corp. v. Green, provides a method for courts to analyze claims based on circumstantial evidence. Under this framework, the plaintiff must first establish a prima facie case of discrimination. If successful, the burden shifts to the defendant to articulate a legitimate, non-discriminatory reason for the adverse employment action. Finally, the burden shifts back to the plaintiff to prove that the employer's reason is a pretext for discrimination. This framework is commonly applied in cases involving allegations of race, gender, age, and other forms of workplace discrimination.
However, in reverse discrimination cases—where plaintiffs are members of a historically majority group—some courts impose a heightened standard. Plaintiffs must demonstrate "background circumstances" that suggest their employer is prone to discriminating against majority group members, sometimes referred to as ‘fishy’ circumstances, and may need to make other showings depending on the particular theory of discrimination.
The Equal Protection Implications
The case of Students for Fair Admissions v. Harvard serves as a relevant backdrop in discussing the Equal Protection implications of the heightened standard in reverse discrimination cases. In SFFA v. Harvard, the Supreme Court scrutinized the use of race in college admissions, ultimately ruling that Harvard's policies violated the Equal Protection Clause. The Court emphasized that any racial classification must be narrowly tailored to serve a compelling governmental interest.
Similarly, in applying a heightened standard to a white male plaintiff, the court essentially imposed an additional burden not typically required in cases involving historically marginalized groups. This disparate treatment could be seen as conflicting with the principles of the Equal Protection Clause, which mandates that all individuals, regardless of race, are entitled to equal treatment under the law.
Penny v. Cottingham Retirement Community
This case is unlikely to lead to a reexamination of the heightened showing and its compatibility with Equal Protections guarantees. The court was able to resolve the motion on the assumption that the even if the plaintiff had made the proper showing he still would have lost the motion.
However, the court touched upon the varying approaches taken by different circuit courts regarding the application of the heightened standard.
Takeaways
The Sixth, Seventh, Eighth, Tenth, and D.C. Circuits still require a heightened showing, but the circuit split on this issue raises the possibility that the Supreme Court could take up this issue or that a particular circuit flips. Footnote 9 of Stepheny v. Brooklyn Hebrew Sch. for Special Children contains a good discussion of how the Second Circuit has dealt with this issue over the years and has not required a heightened showing for some time now.
The Supreme Court was clear in SFFA v. Harvard: “Eliminating racial discrimination means eliminating all of it. And the Equal Protection Clause, we have accordingly held, applies “without regard to any differences of race of color, or of nationality” — it is “universal in [its] application.”” SFFA v. Harvard at 206, citing Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886).
Defendants should think long and hard before relying on the heightened standard in trying to get a case dismissed. In cases like Penny v. Cottingham Retirement Community, it simply is not necessary. In a case that is a closer call an early victory in a district court could lead you down a path of appellate litigation leading all the way to the Supreme Court. The sobering reality for this hypothetical defendant is that a loss at SCOTUS means the litigation must then continue with the threat of having to pay the plaintiffs attorney’s, now quite substantial, fees.
Plaintiffs can take away two lessons from these cases. One is that most anti-discrimination laws, like Title VII, protect everyone equally from being discriminated against based on certain characteristics. State and local laws are often even broader in the characteristics they protect. Contact an attorney if you feel mistreated in any way at work.
The second take away is that the process can itself be the punishment. If you are fired from your job you usually do not have the resources to wait the years it takes for cases to move up and down the appellate court systems in this country. You have to move on and find a new job and suffer from the indignities and difficulties whether you ultimately prevail in court. The key to an early resolution is to get effective counsel on your side as early as you can.
