The Seventh Circuit’s Ortiz opinion is extraordinary in many respects. I want to praise it for its candor. The Seventh Circuit recognizes its own role in creating the convincing mosaic of circumstantial evidence test, discusses the hopes it had for the test, and then shows why the test eventually proved less helpful than anticipated. As I stated in my prior post, I still consider the convincing mosaic to be an important innovation in discrimination law that did further the jurisprudence.
What the Seventh Circuit recognizes is that the federal courts have a consistent tendency to want to change the evidentiary frameworks for thinking about discrimination into the elements of the cause of action. This is understandable because some courts have not always been clear about what the frameworks are. McDonnell Douglas does not establish the elements of a discrimination claim. It is a way to help courts think through discrimination claims (whether it does that is a different issue). Likewise, the convincing mosaic of circumstantial evidence test did not constitute the elements of a discrimination case. It was just another way to encourage judges to think about the totality of facts in a case.
Nonetheless, because these evidentiary frameworks look like elements of a claim and because some courts write about them in this way, it is understandable that some judges understand them to be elements of a claim. Ortiz makes clear what should have already been clear: the convincing mosaic test does not state the elements of a discrimination claim.
The Seventh Circuit recognized that the convincing mosaic test was supposed to be helpful to judges. Instead, it produced what the Seventh Circuit called a form of “legal kudzu.”