Tuesday, May 19, 2009

What About the Split on McDonnell Douglas in Mixed Motive Cases?

Yesterday was a big day for employment law in the Supreme Court.  While AT& T v. Hulteen drew mainstream media attention, the Supreme Court also dashed the hopes for resolving an ongoing employment law Circuit-split with eight simple words:

"The petition for writ of certiorari is denied."

The petition for certiorari (that is the request for the Supreme Court to hear and decide the case) came following the decision in White v. Baxter Healthcare Corp., 533 F.3d 381 (6th Cir. 2008).  The Sixth Circuit issued its opinion last summer becoming the first circuit to abandon the familiar McDonnell Douglas/Burdine burden-shifting framework in mixed-motive discrimination cases.  The burden-shifting framework is used in discrimination cases where the plaintiff relies on circumstantial evidence.  As laid out by the Sixth Circuit:
I.  To establish a prima facie case of employment discrimination, a plaintiff must demonstrate that:

(1) he is a member of a protected class;
(2) he was qualified for his job;
(3) he suffered an adverse employment decision; and
(4) he was replaced by a person outside the protected class or treated differently than similarly situated non-protected employees.

II.  Once the plaintiff establishes this prima facie case, the burden shifts to the defendant to offer evidence of a legitimate, non-discriminatory reason for the adverse employment action.

III. Finally, if the defendant succeeds in this task, the burden shifts back to the plaintiff to show that the defendant’s proffered reason was not its true reason, but merely a pretext for discrimination.

(Internal citations omitted; Formatting added).
In Baxter Healthcare, the Sixth Circuit abandoned this framework in mixed-motive cases. A mixed-motive case is where the plaintiff alleges unlawful discrimination was a "motivating factor" for an employment practice though other legitimate motivating factors existed.  The Court articulated the new test:
The only question that a court need ask in determining whether the plaintiff is entitled to submit his claim to a jury in such cases is whether the plaintiff has presented “sufficient evidence for a reasonable jury to conclude, by a preponderance of the evidence, that ‘race, color, religion, sex, or national origin was a motivating factor for’” the defendant's adverse employment decision.
Though the Sixth Circuit was the first to abandon McDonnell Douglas altogether in mixed-motive cases, the opinion recognized that other circuits varied in their application of the old familiar framework.  In brief: the 8th and 11th still apply McDonnell Douglas; the 5th has a hybrid approach allowing both a showing of pretext and a showing that defendants' proffered reason is only one of the reasons for their conduct (in the third prong); and the 4th and 9th Circuits fall somewhere in between.

If you're keeping score, that's four different approaches.  It appears, however, the split will continue.  The issue is clearly not going away, so sooner or later the Supreme Court will have to address the problem (perhaps if the 3rd Circuit devises a fifth model?).  Until then we're left with nothing but their eight words from yesterday.