Good-bye to the convincing mosaic

The Seventh Circuit had developed an interesting way of thinking about discrimination cases called the convincing mosaic of circumstantial evidence.  Under prior Seventh Circuit case law, the court used this phrase to describe one way that a worker could survive summary judgment.  If the worker put together enough circumstantial evidence that evidence could be pulled together to create a convincing case that discrimination occurred.

In Ortiz, the Seventh Circuit admitted that the convincing mosaic test created more problems than it solved.  Although Ortiz signals the demise of the convincing mosaic test, I want to sing some of its praises and note that it was an important legal innovation.  While agreeing that the test is problematic, I want to point out why it was an important interstitial step in discrimination jurisprudence.

In 1973, the Supreme Court developed the McDonnell-Douglas test for evaluating individual disparate treatment claims with circumstantial evidence. Although the Supreme Court explicitly stated otherwise, lower courts began interpreting McDonnell Douglas as though it created the only way of proving an individual disparate treatment case with circumstantial evidence.  In many circuits, workers trying to establish a discrimination case must proceed through either McDonnell Douglas or a direct evidence framework.  If they fail both tests, their cases are dismissed.

The Seventh Circuit recognized one of the problems with this dichotomy, that neither test fully captured the many ways that a worker might successfully prove discrimination.  The court created the convincing mosaic of circumstantial evidence concept as a new way for courts to think about how a worker might show discrimination.  By trying to wean lower courts off of the McDonnell-Douglas/direct evidence dichotomy, this test was an important development for discrimination law.

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