In 1973, the Supreme Court issued the famous McDonnell Douglas decision in which it set forth the shifting burden test in a Title VII case, where there is no direct evidence of employment discrimination or discriminatory intent. For those who have just climbed out of their fallout shelter, the Court stated that under this test, a plaintiff has the initial burden of establishing a prima facie case of discrimination. To do this the plaintiff, an employee or applicant, must show:   

(i) that she belongs to a protected class, such as a racial minority; (ii) that she applied for and was qualified for a job for which the employer was seeking applicants; (iii) that, despite her qualifications, she was rejected, or if she was already an employee, that she suffered an adverse employment action; (iv)under circumstances giving rise to inference of discrimination.


If the plaintiff can meet this relatively easy burden, the burden then shifts to the employer to articulate some legitimate, nondiscriminatory reason for the employee’s rejection.  If the employer does that, the burden then shifts one final time to the employee, who has to show that the employer’s purported “legitimate, nondiscriminatory reason” is, in fact, merely a “pretext.” Nonetheless, the ultimate burden of proof always remains on the plaintiff. 


A recent federal appeals court took a major swipe at this venerable burden-shifting test, and suggested in a remarkable concurring opinion, that it is now time to scrap the complex, multi-stage, burden-shifting “swinging pendulum” approach of McDonnell Douglas and “collapse” it into one test. The Court stated that “Perhaps McDonnell Douglas was necessary nearly 40 years ago, when Title VII litigation was still relatively new in the federal courts. By now, however, as this case well illustrates, the various tests that we insist lawyers use have lost their utility.” 


Therefore, the Court suggested a relatively simple single test: “plaintiff one way or the other must present evidence showing that she is in a class protected by the statute, that she suffered the requisite adverse action (depending on her theory), and that a rational jury could conclude that the employer took that adverse action on account of her protected class, not for any non-invidious reason.”  


A number of commentators have noted that other appeals courts continue to accord vitality to McDonnell Douglas, and that its demise is illusory.


We shall see.