It is well understood by the Courts that discrimination is often concealed and is rarely seen by “smoking gun” proof. Because of this, the Supreme Court allows plaintiffs to show discrimination with indirect, or circumstantial, evidence. Nearly 40 years ago, the Supreme Court laid out a framework for Courts to use to analyze discrimination claims when there is no direct evidence of discrimination. That test, now commonly referred to as the McDonnell Douglas test, requires plaintiffs to meet four elements of a prima facie case. Then the employer can state a legitimate reason for the employment decision. If it does so, the plaintiff must prove the reason is pre-text for discrimination.
On October 26, 2015, the Seventh Circuit Court of Appeals, the Federal Appellate Court for Illinois, Indiana, and Wisconsin, questioned the Federal Courts’ continued reliance on the McDonnell Douglas test. Specifically, the Court referenced an earlier 2012 decision and the utility of the McDonnell Douglas test. In a concurring opinion in 2012 Judge Wood of the Seventh Circuit argued that McDonnell Douglas was useful as a tool for lawyers and courts to use to analyze discrimination claims when the discrimination laws were in their infancy. Now that the law is more fully developed and understood, Judge Wood argued that analysis of discrimination claims on summary judgment should be done in a similar way to trial, that is, by simply asking the question of whether the employer’s employment decision was made on account of the plaintiff’s protected class and not for a legitimate purpose.
Although the Circuit courts cannot disregard the Supreme Court’s precedent set forth by McDonnell Douglas, the Seventh Circuit’s decision raises interesting points worth debating. Anyone following developments in the area of employment discrimination law should pay attention to this issue. If you have questions about discrimination law contact the employment discrimination attorneys at Famighetti & Weinick, PLLC at 631-352-0050.