Thank you for sharing!

Your article was successfully shared with the contacts you provided.
The time has come to stop treating employment law cases differently than other cases on the federal civil docket. After all, it’s been 40 years since the passage of the Civil Rights Act of 1964. Title VII was designed to eliminate discrimination, based on certain characteristics, in the workplace. Progress toward that goal has been made in large part through the use of the federal court system. As a result, the federal judiciary has been at the forefront of determining what acts or series of acts are unlawful in the workplace. In doing so, somewhere along the line employment cases became “different” from the other cases on the federal docket. Indeed, one of this article’s authors clerked for a year on the 9th U.S. Circuit Court of Appeals and observed that even amidst the circuit renowned for having politically charged opinions, employment law cases brought out more than the usual amount of predilections, prejudices, personal biases and political leanings among the judges, from both liberals and conservatives. Thus it is perhaps not surprising that even today, as courts try to place the 2003 U.S. Supreme Court decision, Desert Palace Inc. v. Costa, in the context of prior employment law decisions, some judges, practitioners and legal commentators continue to miss the point: Employment law cases are essentially no different than other civil cases: Some necessitate a trial, while others are appropriately disposed of on summary judgment. Desert Palace was a simple decision. The Supreme Court unanimously held the text of Title VII, as amended by the Civil Rights Act of 1991, makes it unlawful for an employer to consider any prohibited characteristic as a “motivating factor”-that is, a factor (even if not the only one) that influences a decision-when taking action that adversely affects an employee. The court reached its decision in the context of advising a jury and noted there was no basis for differentiating between direct and circumstantial evidence (typically the practice in certain employment law cases). Case started a roller coaster Perhaps because employment law cases have this “different” feel to them, Desert Palace was not taken at face value. Within four days of the decision, a district court judge had written three employment law opinions that, cumulatively, sought to take Desert Palace out of the jury instruction context and apply it to motions for summary judgment; expand its applicability beyond Title VII to other employment-related statutes-and, most controversially, do away with the McDonnell Douglas burden-shifting test. The McDonnell Douglas test aids courts in determining whether there is a triable issue of fact by setting up an orderly ping-pong game of evidence with respect to specific elements of the plaintiff’s adverse-action claim. Yet these earliest post- Desert Palace opinions held that a plaintiff in an employment law case need only make out what amounted to a prima facie case to survive summary judgment-merely the first volley in the McDonnell Douglas test. Only in employment law could a decision premised on treating employment law cases the same as other civil cases be taken as a signal to treat them differently. While plaintiffs’ counsel and certain commentators rejoiced and declared summary judgment to be dead in the employment law context in the wake of the first post- Desert Palace decisions, not all courts agreed-either about the death of summary judgment or the demise of the McDonnell Douglas scheme. Some courts have concluded McDonnell Douglas needs to be abandoned, others that Desert Palace requires a modification but not an abandonment of McDonnell Douglas, and still others that Desert Palace has no impact whatsoever on cases before them on summary judgment. Now, more than a year after the Desert Palace decision, the circuit courts have begun to weigh in, and, with a split already present (between the 5th and 8th circuits), a return to the Supreme Court would appear likely. As a mere judicial construct, there is nothing particularly magical or divine about the McDonnell Douglas scheme. Whether McDonnell Douglas or some new construct provides the best or even a single means of being fair to both plaintiffs and defendants in employment discrimination cases is debatable. What is not debatable is that employment law should not be treated differently from other civil litigation, either when it comes to evidence, determination of liability or using summary judgment as a useful judicial-management tool. Desert Palace would have a more lasting effect if it acted as the catalyst for treating employment discrimination cases like all other civil cases. After all, that outcome has been 40 years in the making. Ilyse Goldsmith and Kevin Finnerty are associates in the Minneapolis office of Dorsey & Whitney.

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.