Dive Brief:
- The 5th U.S. Circuit Court of Appeals declined Monday to abandon the U.S. Supreme Court’s McDonnell Douglas test for adjudicating employment discrimination claims, but two members of a three-judge panel signaled that the test’s days may be numbered.
- The court affirmed summary judgment for Procter & Gamble Co. in a White former employee’s race bias lawsuit, holding that a district court rightly found that the plaintiff failed to show his termination was pretextual. The 5th Circuit applied the test established in McDonnell Douglas Corp. v. Green despite being asked by the plaintiff to reconsider the framework, stating that the court “remains bound by the rule of orderliness.”
- In a concurring opinion, however, Judge James Ho called McDonnell Douglas a “wrong” decision that suggests Title VII of the 1964 Civil Rights Act does not apply to White plaintiffs. Ho wrote that the test also has incorrectly been applied at the summary judgment stage and requires plaintiffs to prove factors beyond those outlined in Title VII’s plain text. Chief Judge Jennifer Walker Elrod joined Ho’s concurrence.
Dive Insight:
As the 5th Circuit noted, the McDonnell Douglas framework has been widely applied by federal courts, specifically in instances where a plaintiff offers no direct evidence of intentional discrimination but instead asserts that an employer’s stated reason for an adverse employment action was actually pretext for discrimination.
But multiple legal authorities — including sitting members of the Supreme Court — have since called the test into question. Perhaps the most high-profile voice is Justice Clarence Thomas who, in a concurring opinion to last year’s Ames v. Ohio Dept. of Youth Services decision, called McDonnell Douglas an example of “judge-made doctrines” that “have a tendency to distort the underlying statutory text, impose unnecessary burdens on litigants, and cause confusion for courts.”
Ames struck down lower courts’ higher proof burden requirements for majority-group plaintiffs alleging job discrimination under Title VII. But Thomas, joined by Justice Neil Gorsuch, said he would be willing to reconsider McDonnell Douglas in a future case that asked the court to do so, and even went as far as to suggest that lower courts were “free to proceed” without applying the test.
While a majority of the 5th Circuit panel appeared to endorse Thomas’ view, the court nonetheless held that Procter & Gamble offered a legitimate reason for terminating the plaintiff: documentation showing that he violated the company’s credit card policy and one of its procurement policies.
The plaintiff could not rebut those allegations, only claiming that he was treated less favorably than similarly-situated non-White employees and disputing the company’s interpretation of one of the policies at issue. He also claimed that he was fired in retaliation for raising concerns about racial discrimination.
Ultimately, the 5th Circuit backed the district court’s grant of summary judgment for P&G, holding that the plaintiff could not show that the company’s reason for the termination was discriminatory or retaliatory. It also declined to reverse summary judgment on his claims under Louisiana’s state whistleblower law.
Though members of the court expressed skepticism of McDonnell Douglas, a different panel upheld some aspects of the test in a June decision. Namely, the 5th Circuit held that the framework’s requirement that Title VII plaintiffs show they are less favorably treated than a similarly situated comparator did not cut against the Supreme Court’s decision in Ames.
