Document Type
Article
Publication Date
1-2024
Abstract
The McDonnell Douglas framework is the most important analytical structure in employment discrimination law. Scholars and judges have regularly criticized the three-part burden-shifting test. Despite decades of criticism, a central feature of the framework remains unexamined - its second step is incompatible with the summaryjudgment standard.
In employment discrimination cases courts often grant summaryjudgment in the employer's favor. Scholars have offered various accounts of why this happens, including docket pressures and published case law that focuses on grants of summary judgment. The second step of the inquiry has largely escaped scrutiny because it appears to be a quirky, but somewhat harmless, part of the McDonnell Douglas framework.
This Article demonstrates that the conventional view of the second step is wrong. When a defendant files a motion for summary judgment, a court must draw all reasonable inferences in favor of the plaintiff, the non-moving party. The second step of McDonnell Douglas requires courts to credit the employer's reason for acting and give it a certain weight and legal effect in discrimination analysis. It also labels an employer's reason for acting as legitimate and non-discriminatory even though the defendant is not required to establish either proposition. Even when a defendant's reason does not respond to the plaintiff's theory of the case, courts still credit the employer's reason.
The year 2023 marks the fiftieth anniversary of McDonnell Douglas. Yet, no one has recognized what has been hiding in plain sight for decades: the second step cannot be reconciled with the summaryjudgment standard. The second step alters discrimination analysis in ways that deny plaintiffs their right to have juries decide contested cases.
Recommended Citation
Sandra F. Sperino,
Irreconcilable: McDonnell Douglas and Summary Judgment, 102 North Carolina Law Review 459
(2024).
Available at: https://scholarship.law.missouri.edu/facpubs/1212
