McDonnell Douglas Corporation v. Green: A Framework for Analyzing Discriminatory Intent Using Indirect Evidence
In the landmark McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973), the Supreme Court described a burden-shifting framework by which employees can prove their employers engaged in unlawful discrimination under Title VII without any “direct” evidence of discriminatory intent. The enduring aspect of this case was the Court’s description of the burden-shifting proof framework, and not so much the outcome of particular factual case before it.
In short, McDonnell Douglas clarified that even if an employee lacks direct evidence of intentional discrimination (like a statement from her boss saying, “We’re firing you because of your race”), the employee can still prevail on a claim of intentional discrimination by presenting only indirect or circumstantial evidence that supports an inference of her employer’s discriminatory intent (like evidence that her boss replaced her with a less qualified employee of a different race). The opinion describes an order of presenting proof and shifting burdens to help courts analyze discrimination claims where the plaintiff has chosen to proceed using purely indirect or circumstantial evidence.
Green was a black mechanic, lab technician, and civil rights activist. He worked for McDonnell Douglas Corporation, a St. Louis aerospace company, until his termination in 1964. After his discharge, Green participated in a protest against McDonnell Douglas in which he asserted that his termination had been racially motivated and in violation of Title VII of the Civil Rights Act of 1964. The protest involved a “stall-in” in which protesters parked vehicles to block the roads leading to one of the company’s factories. Green was arrested for obstructing traffic. After the protest, McDonnell Douglas publicly advertised a job opening for qualified mechanics. Green applied for the position. Although Green was a qualified mechanic, McDonnell Douglas declined to hire him. McDonnell Douglas later defended this decision not to hire Green on the grounds that Green had engaged in illegal traffic-obstructing conduct while participating in the protest.
Green filed a charge with the Equal Employment Opportunity Commission (EEOC), alleging McDonnell Douglas refused to rehire him on the basis of race and retaliation in violation of Title VII. The EEOC found reasonable cause to believe McDonnell Douglas’ rejection of Green’s reemployment application violated the anti-retaliation provision of §704(a) of Title VII. That section forbids discrimination against applicants or employees for making any attempt to protest or rectify allegedly discriminatory employment conditions. 42 U.S.C. § 2000e–3(a). The EEOC made no finding as to Green’s allegation that McDonnell Douglas violated §703(a)(1) of Title VII, which prohibits racial and other types of status-based discrimination. 42 U.S.C. § 2000e–2(a)(1).
Green filed suit. The District Court dismissed Green’s claims, holding that McDonnell Douglas refused to rehire Green because of his participation in illegal protest demonstrations, rather than his race or opposition to racial discrimination. The District Court ruled that Green’s (illegally) obstructing traffic in protest was not an activity protected by §704(a), and dismissed Green’s §703(a)(1) racial discrimination claim on the grounds that the EEOC had made no finding of racial discrimination in any employment decision. The Court of Appeals affirmed the dismissal of the §704(a) retaliation claim. But it reversed the dismissal of Green’s §703(a)(1) racial discrimination claim, holding that an EEOC determination of reasonable cause was not a jurisdictional prerequisite to pursuing a discrimination claim in federal court violation. McDonnell Douglas appealed this decision. The Supreme Court granted cert.
The Court’s Decision: A Framework for Analyzing Indirect Evidence of Discrimination
In a 9-0 decision in favor of Green, the McDonnell Douglas Court described burden-shifting framework of organizing and evaluating indirect proof of discrimination. An employee may use this approach to show intentional discrimination by an employer in the absence of any direct evidence of discrimination. More than 45 years later, the McDonnell Douglas framework continues to guide lower courts’ summary judgment analyses of many discrimination and retaliation claims.
The McDonnell Douglas framework entails three discrete steps. First, the plaintiff employee must establish a prima facie case by presenting sufficient indirect evidence to give rise to an inference of discrimination. For example, in a non-hiring case, the employee can establish a prima facie case by presenting evidence that (1) the employee is a member of a Title VII protected group; (2) she applied and was qualified for the position sought; (3) the job was not offered to her; and (4) the employer continued to seek applicants with similar qualifications. Similarly, in a demotion or termination case, the employee can establish a prima facie of racial discrimination case by showing (1) that she is a member of a Title VII protected group, (2) that she was qualified for the position she held, (3) that she was demoted and/or discharged from that position, and (4) that the position remained open and was ultimately filled by a someone of a different race. See, e.g., St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993).
If the employee can prove the elements of a prima facie case, the McDonnell Douglas analysis moves to the second step.
In that second step, the burden shifts to the defendant employer. The employer is allowed to offer a purported non-discriminatory reason for the adverse action suffered by the employer— such as the refusal to hire, or a termination. For example, in McDonnell Douglas, the employer argued that it refused to rehire Green not because of his race, but because he illegally obstructed traffic. Once the employer offers a non-discriminatory reason for its decision, the burden shifts back to the employee.
In that final step of the McDonnell Douglas framework, the plaintiff employee must be allowed the opportunity to demonstrate that the defendant’s proffered explanation is not consistent with a completely honest or unbiased view of the employee, making the explanation “pretext” for a discriminatory bias underlying the adverse employment action.
The Court therefore held that while the Court of Appeals correctly found Green proved a prima facie case of race discrimination, it erred in holding that McDonnell Douglas had failed to discharge its burden of presenting a legitimate, non-discriminatory reason for its decision to not rehire Green (his participation in illegal traffic obstructing). Critically, the Court made clear that on remand the employee Green must be given a fair opportunity to show that his employer’s stated reason was a pretext for a racially discriminatory decision. The Court indicated that one way an employee in Green’s position could successfully demonstrate pretext was with comparator evidence — such as by showing that white employees who engaged in similar illegal activity were retained or hired by McDonnell Douglas. Other evidence that may be relevant at the pretext stage, depending on the circumstances, could include evidence that the employer had discriminated against the respondent when he was an employee, or followed a discriminatory policy toward minority employees. See McDonnell Douglas, 411 U.S. at 804-05. This framework and its application has been the topic of much scholarly literature.
The McDonnell Douglas Court agreed with the Court of Appeals that an employee’s right to bring suit under Title VII is not confined to charges as to which the EEOC has made a reasonable cause finding.
McDonnell Douglas clarified that even if an employee lacks direct evidence of intentional discrimination (like an admission from a supervisor that the employee was fired because of her race), the employee can still prevail on a claim of intentional discrimination by presenting only indirect or circumstantial evidence that supports an inference of her employer’s discriminatory intent (like evidence that her boss replaced her with a less qualified employee of a different race). The opinion there describes an order of presenting proof and shifting burdens to help courts analyze discrimination claims that turn on purely indirect or circumstantial evidence. First, the employee must establish a prima facie case which will give rise to an inference of discrimination. Second, the employer is allowed to offer a purported non-discriminatory reason for its adverse action against the plaintiff. And in the final step of this framework, the employee must be allowed the opportunity to show that the employer’s proffered explanation is just pretext for discriminatory bias.
It is worth noting that for an employee to prove unlawful discrimination, the McDonnell Douglas proof framework is not required. Rather “discrimination may be proven through direct and indirect evidence or through the McDonnell Douglas burden-shifting framework.” Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562, 572 (4th Cir. 2015) (emphasis added) (citing Raytheon Co. v. Hernandez, 540 U.S. 44, 49-50 & n3 (2003)). As noted above, direct evidence is “evidence of conduct or statements that both reflect[s] directly the alleged discriminatory attitude and … bear[s] directly on the contested employment decision.” Warch v. Ohio Cas. Ins. Co., 435 F.3d 510, 520 (4th Cir. 2006) (quoting Taylor v. Virginia Union Univ., 193 F.3d 219, 232 (4th Cir. 1999) (en banc)).
The McDonnell Douglas framework turns on circumstantial evidence and inference, having the employee demonstrate the employer’s proffered non-discriminatory reason for termination is “unworthy of credence.” Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). “The Supreme Court constructed the elements of the [McDonnell Douglas] prima facie case to give
plaintiffs who lack direct evidence a method for raising an inference of discrimination.” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 318 (4th Cir. 2005) (citing Burdine, 450 U.S. at 253–54 and Costa v. Desert Palace, Inc., 299 F.3d 838, 855 (9th Cir. 2002), aff’d, 539 U.S. 90 (2003)).
Where “a plaintiff has direct evidence of discrimination … the McDonnell Douglas framework is of little value[.]” Id. at 318 n4 (citing Price Waterhouse v. Hopkins, 490 U.S. 228, 271 (1989) (O’Connor, J., concurring) (noting that the Supreme Court has suggested that the burden-shifting framework is inapplicable where a plaintiff presents direct evidence of discrimination)).
An employee who has direct evidence of discrimination, or a combination of direct and indirect evidence, may therefore prove her claims without using the McDonnell Douglas method.
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