Seventh Circuit Court of Appeals: McDonnell Douglas test is burdensome, unjustified

The test case regarding possible employment discrimination is once again under fire.


The McDonnell Douglas test — a legal principle regarding possible employment discrimination — is under fire by the U.S. Seventh District Court of Appeals.

The McDonnell Douglas test, put in place in 1973 by the U.S .Supreme Court, mandates the burden of proof in an employment discrimination case falls to the plaintiff employee and that an accused employer must show any action was taken for non-discriminatory reasons.

The test was born from a lawsuit involving Chicago-based aerospace company McDonnell Douglas. The issue was revisited in a recent article posted on the Illinois Chamber of Commerce website.

Under the rules of the test, claims can survive even if a plaintiff lacks direct evidence of discrimination, they are a member of a protected class, they were meeting employer expectations, they suffered an adverse employment action or other individuals similar to them were treated better.

When these criteria are met, the burden shifts to the employer, who must prove why the alleged discriminatory action occurred. 

As far back as 2012, the Seventh Circuit Court has said the test was "burdensome and unjustified."

“Perhaps McDonnell Douglas was necessary nearly 40 years ago," Seventh District Court Judge Diane Wood said. "The various tests that we insist lawyers use have lost their utility.”

Wood has suggested employment litigation would be better dealt with in the same manner as tort litigation.

In another more recent case, the Seventh District Court also questioned the “continued utility of the direct and indirect methods of proof in analyzing discrimination claims” but still utilized it. The court reiterated that its main inquiry should be “whether a reasonable jury could find prohibited discrimination.”

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