What to do about McDonnell Douglas?

There is much to like in Ortiz; however, there is one part of the opinion that is problematic.  While the Seventh Circuit decries dividing evidence into buckets labeled direct evidence and indirect evidence and then analyzing that evidence separately, it is left with a bit of a problem with what to do with McDonnell Douglas. Ortiz already presses discrimination jurisprudence forward quite significantly and it is probably too much to ask to demand that the court also take on the behemoth that is McDonnell Douglas.

Rather than take it on, the Seventh Circuit simply notes that McDonnell Douglas is consistent with Ortiz. In principle, the Seventh Circuit is correct.  McDonnell Douglas and its progeny set forth one way for courts to look at certain discrimination cases.  That framework is not the only way to look at these cases.  However, the Seventh Circuit missed an important opportunity to address a difference between principle and practice.  Many judges treat McDonnell Douglas as if it is the only way to establish a disparate treatment claim based on circumstantial evidence.  The test has created the same problems and the same confusion as that unintentionally produced with the convincing mosaic test.

The convincing mosaic test was an important diversion from the primacy of McDonnell Douglas.  I worry that sounding the death knell of the convincing mosaic test will return McDonnell Douglas to its primacy in the Seventh Circuit.

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