In a new series of posts, I want to start a conversation about whether the courts should keep using the McDonnell Douglas test. While the test played an important role in helping courts understand how discrimination happens, its complicated, three-part burden-shifting structure is largely unhelpful and should be abandoned. I will show how courts have diminished the test’s importance over time.
Since 1973, both courts and litigants have struggled to understand and apply the three-step burden-shifting framework. The test was originally designed to make it easier for plaintiffs to present cases involving circumstantial evidence. But, its structure is so confusing that it ultimately spawned decades of legal wrangling about the legal contours of the test and about how the test fits in with other ways of understanding discrimination. This legal wrangling focused courts on hyper-technical details of discrimination frameworks and away from the important question of whether discrimination actually happened in a particular case.
McDonnell Douglas helped courts understand that discrimination might be happening when an employer lies about the reason it took a particular action. It also helped courts understand that discrimination might happen when an employer treats similarly situated people differently. However, the complex burden-shifting framework is no longer needed to understand these points. In a series of posts, I will discuss the history of the test, its disconnection from the language of Title VII, and the confusion it caused. I also will discuss how modern courts treat the test.
As we begin this conversation about McDonnell Douglas, I will also continue posting about the causation questions we have been exploring for the past few months.