Employee Rights and Employment Policy Journal

Of Babies, Bathwater, and Throwing Out Proof Structures: It Is Not Time to Jettison McDonnell Douglas

By
William R. Corbett

Abstract

The year 1998 is the silver anniversary of the McDonnell Douglas proof structure, which was announced by the United States Supreme Court in its 1973 decision in McDonnell Douglas Corp. v. Green. The proof structure was developed as a way of analyzing intentional discrimination cases under Title VII of the Civil Rights Act of 1964. Although originally developed in the context of a Title VII case, the McDonnell Douglas analysis has been applied to disparate treatment claims under other federal employment discrimination statutes. It also has been applied to other types of employment claims, such as state wrongful discharge claims, and other types of discrimination claims.

Despite its proliferation in employment discrimination law and beyond, the McDonnell Douglas analysis has suffered setbacks at the hands of both the Court that created it and academics and practitioners in employment discrimination law. In 1993, the Court decided St. Mary's Honor Center v. Hicks, which diminished the significance of the analysis as a means of proving intentional discrimination. In the aftermath of Hicks, many commentators have criticized the McDonnell Douglas proof structure and called for its abandonment. The most influential of these is Professor Deborah C. Malamud, who published a law review article in 1995 in which she argued that Hicks was correctly decided and that, since McDonnell Douglas is now practically meaningless, it should be abandoned in favor of an open-ended inquiry that asks only whether the employer intentionally discriminated.

Celebrating the silver anniversary of McDonnell Douglas, Professor Corbett responds to Professor Malamud, disagreeing with her about both the correctness of Hicks and the wisdom of abandoning the McDonnell Douglas proof structure. Regarding Hicks, Corbett faults Malamud and the Hicks majority for rejecting the "basic assumption" on which the proof structure is based and for undervaluing the probativeness of the evidence produced by plaintiffs under the proof structure. Corbett also argues that the strong public policy undergirding the federal employment discrimination laws should have caused the Court to reach a different result in Hicks. Regarding abandoning McDonnell Douglas, Corbett first argues that Hicks provides no reason to do so because that decision did not resolve the effect of the proof structure on whether plaintiffs can survive motions for summary judgment and judgment as a matter of law. Second, he contends, contrary to Malamud, that a simplified McDonnell Douglas jury instruction can help juries evaluate whether an employer intentionally discriminated on a prohibited basis. Finally, Corbett argues that the McDonnell Douglas analysis, which requires employers to articulate their reasons for adverse employment actions, plays an important symbolic and practical role in guarding the rights protected by the federal employment discrimination laws against the powerful common law doctrine of employment at will.

Corbett concludes that the Supreme Court threw out the bathwater in the Hicks case, but that does not provide a reason to throw out the baby. Indeed, it provides all the more reason for preserving the McDonnell Douglas proof structure.