§1.6 VII. The Mcdonnell Douglas Burden Shifting Test

• Jurisdiction: New York

VII. The McDonnell Douglas Burden Shifting Test

When it comes to cases concerning discrimination, harassment or retaliation, and the evidence is indirect or circumstantial¹⁵⁵ in nature (as it is in many cases), courts apply what has become known as the McDonnell Douglas burden shifting test or analysis.¹⁵⁶ Often, because an employer that has engaged in discrimination is unlikely to leave a "smoking gun," a plaintiff usually must rely on "the cumulative weight of circumstantial evidence" when proving bias.¹⁵⁷ The test comes from the seminal 1973 United States Supreme Court case McDonnell Douglas Corp. v. Green.¹⁵⁸ The McDonnell Douglas burden shift places the initial burden on the plaintiff, but once that burden is met the burden next falls on the defendant. While placing the burden on defendants is not usual in the American legal system, in essence the shift to the defendant resembles (but certainly is not the same as) a defendant proving an affirmative defense (which is a burden regularly placed on defendants¹⁵⁹), although as mentioned earlier, it is really a burden of production, a showing, and not a burden of persuasion.¹⁶⁰ As stated by then-New York State Chief Judge Lawrence H. Cooke, for a unanimous Court in N.Y.C. Bd. of Ed., Community School Dist. No. 1 v. Batista,¹⁶¹ "to overcome a prima facie showing of discrimination in a firing an employer must make 'a showing that the employee was terminated for some independently legitimate reason which was neither a pretext for discrimination nor was substantially influenced by impermissible discrimination.'"¹⁶² If defendant meets its burden, the final shift does place the ultimate burden back on the plaintiff, where it belongs, to prove the case and liability.

As made clear by the U.S. District Court for the Eastern District of Pennsylvania in McCarty v. Marple Tp. Ambulance Corps, when discussing the burden shifting analysis:

A plaintiff asserting an ADA claim or a Title VII claim may proceed using a three-step burden-shifting framework set forth by the Supreme Court in McDonnell Douglas. . . .

First, the McDonnell Douglas approach requires a plaintiff to establish a prima facie case of discrimination…. Under this approach, a plaintiff must show that:

(1) [h]e is a member of a protected class;

(2) [h]e was qualified for the position he sought to attain or retain;

(3) [h]e suffered an adverse employment action; and

(4) the action occurred under circumstances that could give rise to an inference of intentional discrimination.

. . . Courts vary the precise components required for a prima facie case because "the elements... depend on the facts of a particular case.". . . The burden to establish a prima facie case is not an onerous one, but a prima facie case can allow a court "to eliminate the most obvious, lawful reasons for the defendant's action.". . .

If a plaintiff successfully establishes a prima facie case, the burden shifts to the defendant to articulate some legitimate, non-discriminatory reason for its decision. . . . If the defendant succeeds, the burden returns to the plaintiff to show that the employer's stated reason for termination was merely a pretext for intentional discrimination. . . . To survive a motion for summary judgment, a nonmoving plaintiff must point to evidence that: "1) casts sufficient doubt upon each of the legitimate reasons proffered by the defendant so that a factfinder could reasonably conclude that each reason was a fabrication;" or 2) permits the factfinder to reasonably conclude "that discrimination was more likely than not a motivating or determinative cause of the adverse employment action.". . . ¹⁶³

While the initial burden is not usually a high one, there are cases where plaintiffs have failed to make out a prima facie showing sufficient to survive motion practice.¹⁶⁴ For instance, in the case of Whigham-Williams v. Am. Broadcasting Co., Inc.,¹⁶⁵

[p]laintiff [did] not sufficiently allege a specific position she applied for and was rejected from. Plaintiff does not allege anywhere in the complaint that there was an opening for a coanchor position on Good Morning America, Plaintiff concedes that her talent agency contacted executives at ABC regarding "potential openings" for a co-host position on Good Morning America. . . . Additionally, Plaintiff does not sufficiently allege that she was "qualified for [the] job.". . . Plaintiff alleges that she has an Associate's degree, is studying law and theology, and is a member of two professional organizations. . . . However, she fails to explain how those credentials qualify her to be a co-anchor on Good Morning America. ¹⁶⁶

Michael Strahan was hired as the new co-anchor. Plaintiff's case was dismissed. Plaintiffs will not survive summary judgment when...