Causation, Part 4 (History, McDonnell Douglas)

In 1973, the Court decided McDonnell Douglas v. Green, the next major case to explain the core protections of Title VII. In this case, the Court explained one way a plaintiff could establish a claim of individual disparate treatment under the statute. Because McDonnell Douglas sets forth an evidentiary structure for discrimination claims, it implicitly involves causation. The test describes a way that a plaintiff can make a connection between a negative action and a protected trait. However, the test does not explicitly invoke either “but for” or motivating factor causal standards.

In McDonnell Douglas, the Supreme Court created a three-part, burden-shifting test for analyzing individual disparate treatment cases. Under McDonnell-Douglas, a court first evaluates the prima facie case, which requires proof of the following:

(i) [the plaintiff] belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications[.]

If the plaintiff establishes the prima facie case, a rebuttable presumption of discrimination arises. The burden of production then shifts to the employer to articulate some legitimate, nondiscriminatory reason for the employee’s rejection. If the defendant meets this requirement, the plaintiff can still prevail by demonstrating that the defendant’s reason for the rejection was simply pretext.

McDonnell Douglas remains one of the primary cases that courts use to consider individual disparate treatment cases. Courts and litigants invoke the test in cases brought under many different statutes, such as the ADEA, ADA, section 1981, and state discrimination law. As we consider how causation law develops, one lingering question is how McDonnell Douglas meshes with new iterations of cause.

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