The Return of the Technical McDonnell Douglas Paradigm
October 31, 2019 | 94 Wash. L. Rev. 967
Abstract: For many anti-discrimination plaintiffs, the McDonnell Douglas paradigm will determine the success or failure of their claims. And yet, for decades, most lower courts have applied a technical version of McDonnell Douglas—under which plaintiffs invariably lose. Thus, instead of asking the factual question of whether the defendant’s action was “because of” protected class status, the lower courts rely on a host of technical rules to dismiss even factually strong anti-discrimination claims.
This is not the first time the lower courts have attempted to adopt a technical version of the McDonnell Douglas paradigm. In the 1970s and 1980s, the lower courts applied similar technical rules—but to the disadvantage of discrimination defendants, not plaintiffs. Across a series of cases, the United States Supreme Court rejected these technical rules, reasoning that it is ultimately the factual question of discrimination that must control. Thus, the Supreme Court has already determined that it is the factual question of discrimination—rather than any technical rules engrafted by the lower courts on McDonnell Douglas—that must be dispositive in a discrimination case.
This history should have profound implications for the practice of anti-discrimination law today. The lower courts’ technical approach to the McDonnell Douglas paradigm represents one of the most significant and pervasive obstacles to contemporary anti-discrimination enforcement. And yet, it is plainly inconsistent with the Supreme Court’s existing case law. Remembering this history—and recognizing its significance—offers one of the most realistic opportunities for systematic anti-discrimination reform today.
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