The Future of Summary Judgment in Employment Discrimination Claims

The Supreme Court has been asked to review a case that could create serious implications for how employment discrimination cases achieve summary judgment. In a petition now before the Supreme Court, the court has been asked to reconsider the decades-old McDonnell Douglas framework, which is used by courts to evaluate employment discrimination and retaliation claims when there may not be direct evidence of discrimination.



Since 1973, the McDonnell Douglas framework has determined wins and losses in employment discrimination lawsuits. This framework is used in cases of discrimination claims when a plaintiff does not have direct evidence of discrimination.

What is the McDonnell Douglas Framework?

In some discrimination cases, there may not be direct evidence of discriminatory intent. In these cases, plaintiffs rely on circumstantial evidence, and in these cases, courts will apply the McDonnell Douglas framework. The framework has three steps:

1. The employee must establish a prima facie case of discrimination or retaliation.
2. The employer must articulate a legitimate, nondiscriminatory or nonretaliatory reason for the employment action.
3. The employee must show that the stated reason given by the employer was pretextual.
   

The Petition’s Argument

The petition argues that the McDonnell Douglas framework is not grounded in the text of Title VII. Title VII does not require a plaintiff to prove that the employer’s stated reason is entirely false, but rather it allows liability where race, sex, religion, national origin, or another protected trait was a motivating factor in the decision.

In many employment disputes, more than one reason may be involved. While the employer may have a legitimate concern for an employment decision, the employee may argue that discrimination or retaliation also influenced the decision. The petition asks whether courts should focus on whether the employee disproved the employer’s reason or on whether the overall evidence could allow a jury to determine whether discrimination or retaliation was a motivating factor.

What Does This Mean for Employers?

If the Supreme Court were to take this case and limit or modify McDonnell Douglas, more discrimination and retaliation cases could achieve summary judgment. Courts may focus more heavily on some of the following information in these cases:



• Consistent application of company policies
• Documentation of the decision-making process
• Whether the employer’s explanation changed over time
• Whether the employer followed normal procedures
• Whether similarly situated employees were treated differently
• Whether the timing suggested a retaliatory motive

The Takeaway

This petition for certiorari does not mean that the law has changed, for now. Regardless of whether the Supreme Court takes the case, employers should continue to focus on clear, consistent, and well-documented decision-making. Before taking an adverse employment action, employers should be able to identify the specific policy, performance issue, or business reason supporting the decision and confirm that similar situations have been handled consistently.