Lexicon, McDonnell Douglas Test

The McDonnell Douglas test refers to a three-part burden-shifting framework that courts use in some discrimination cases. The Supreme Court created the test in 1973 in the case of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). In McDonnell Douglas, an African-American employee brought suit alleging discrimination under Title VII of the Civil Rights Act of 1964 when his employer failed to re-hire him as a mechanic.

Under the McDonnell Douglas test, the plaintiff bears the initial burden. The plaintiff must prove the following: “(i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job 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.” Id. at 802. In a footnote in the decision, the Court noted that these elements would change to fit the circumstances of individual cases.

After the plaintiff satisfies each of these four elements, the burden then shifts to the defendant to articulate some legitimate and non-discriminatory reason for its action. If the employer does this, the burden then shifts back to the plaintiff to prove that the reason provided by the defendant was pretextual or discriminatory.

In a later case, Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981), the Supreme Court clarified the McDonnell Douglas test. In Burdine, the Supreme Court lessened the defendant’s burden in the McDonnell Douglas test. Cases prior to the decision had held that the employer had both the burdens of production and persuasion on the second step of the McDonnell Douglas test. For example: The plaintiff needed to prove the four elements of the prima facie case, then the defendant needed to prove that it had a legitimate non-discriminatory motive, then ultimately, the plaintiff could prove that the reason was pretext. If the defendant could not carry the burden of persuasion that it had a legitimate non-discriminatory reason for the adverse employment action then the burden would not shift back to the plaintiff. The Supreme Court, however, said that the defendant did not have a burden of persuasion. The defendant in the McDonnell Douglas burden-shifting framework only carries the burden of production. In other words, it only needs to present evidence of its nondiscriminatory reason for its actions but does not need to prove the existence of that reason.

by Erin Alderson

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