The Return of the Technical Mcdonnell Douglas Paradigm

By Eyer, Katie | Washington Law Review, September 1, 2019 | Go to article overview

The Return of the Technical Mcdonnell Douglas Paradigm


Eyer, Katie, Washington Law Review


INTRODUCTION

The McDonnell Douglas paradigm is ubiquitous in modern antidiscrimination law. In the employment discrimination arena, more than 90% of cases exclusively raise claims of individual disparate treatment- and the McDonnell Douglas burden-shifting paradigm is the predominant way of proving such claims.1 Areas such as housing discrimination, public accommodations discrimination, discrimination in government programs, and even Equal Protection claims are also often evaluated by the lower courts via the McDonnell Douglas paradigm.2 Thus, the paradigm's familiar three-step approach-prima facie case, "legitimate, nondiscriminatory reason," pretext/ultimate issue of discrimination- pervades virtually every corner of anti-discrimination law.3 If the McDonnell Douglas paradigm is broken, anti-discrimination law itself is in trouble.

And indeed, scholars have argued for years that the McDonnell Douglas paradigm has become deeply flawed.4 Relying on a hypertechnical version of the McDonnell Douglas paradigm, the lower courts5 routinely refuse to allow discrimination cases to reach a jury.6 Such analyses rarely focus on the factual question of whether or not discrimination occurred, substituting technical rules for fair consideration of whether discrimination took place (or whether a reasonable jury could so conclude).7 Although the McDonnell Douglas paradigm is supposed to be a procedural vehicle-intended merely to assist the fact-finder in answering the factual question of discrimination-its associated legal rules are treated instead as a substantive basis to dismiss claims.8 Through this case-by-case application of the technical McDonnell Douglas paradigm,9 the lower courts have effectuated a quiet revolution in antidiscrimination law, rendering it very difficult for victims of discrimination to seek relief.10

Unlike a high-profile United states supreme Court decision, this quiet revolution has not resulted in extensive media coverage nor in successful calls for a Congressional override.11 The myriad legal rules that comprise the technical McDonnell Douglas paradigm-rigid formulations of the prima facie case, demands for "nearly identical" comparators, doctrines like the stray remarks doctrine, honest good faith belief rule, and others- are not headline-grabbing and largely have not permeated the public consciousness.12 And while scholars have recognized the problem, most of the solutions they have suggested, including abandonment of the McDonnell Douglas paradigm, do not appear imminent.13 Thus, even as the application of technical legal rules via the McDonnell Douglas paradigm continues to widely disadvantage discrimination plaintiffs in the lower courts, it is far from clear that a solution is at hand.

This Article suggests that a solution to this common problem exists- and indeed has been hiding in plain sight in the history of the Supreme Court's McDonnell Douglas jurisprudence. This is not the first time that the lower courts have attempted to impose technical legal rules under the rubric of the McDonnell Douglas paradigm.14 And, the Supreme Court amply considered-and rejected-such a technical approach.15 Ultimately, the Supreme Court made clear across a series of cases that it is the factual question of discrimination that must control the outcome of McDonnell Douglas cases, rather than any technical rules the lower courts may adopt.16 Under the Supreme Court's doctrine, the McDonnell Douglas paradigm is simply a "procedural device"-one which may aid in considering the factual question of discrimination, but that does not (and cannot) supplant the fundamentally factual question that the federal anti-discrimination laws ask.17

Of course, the lower courts' first attempt to impose technical rules via McDonnell Douglas largely burdened discrimination defendants, not discrimination plaintiffs.18 Unlike today, where it is plaintiffs whose factually viable claims are rejected based on technical legal rules, discrimination defendants were historically the party that saw their factual arguments subordinated to technical legal rules. …

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