Last month, we talked about what we called a “remarkable” federal appeals court concurring opinion in Coleman v. Donahoe, which took a sharp swipe at the long-established McDonnell Douglas test which set forth the shifting burdens in a Title VII case where there is no direct evidence of employment discrimination or discriminatory intent.  Others have begun commenting on this decision.

For example, The Harvard Law & Policy Review blog just wrote that the recent decision “makes good sense:” 


In announcing the McDonnell Douglas approach, the Supreme Court’s intention was to assist plaintiffs by setting out a roadmap for proving employment discrimination via circumstantial evidence. But in practice the rigidity of McDonnell Douglas burden shifting all too often creates barriers for plaintiffs, because good evidence of discrimination won’t always fit neatly into the three-step framework.”


Plaintiff’s firm Outten & Golden also wrote a long comment about this new decision which should be looked at.