The McDonnell Douglas Burden Shifting Framework

The McDonnell Douglas Burden Shifting Framework

Under Washington State law, what is the McDonnell Douglas Burden-Shifting Framework (hereinafter, "McDonnell Douglas Framework" or "McDonnell Douglas") and how is it appliedHere's my point of view (NOTE: please read our DISCLAIMER before proceeding).


The McDonnell Douglas Framework is also known as a burden-shifting scheme. "The burden-shifting schemes, developed initially in the federal courts, were an effort to formulate uniform rules for making a prima facie case." Kastanis v. Educational Employees Credit Union, 122 Wn.2d 483, 490, 859 P.2d 26 (1993) (hyperlink added). "These rules were never intended as a charge to the jury." Id. (citing, United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 716, 103 S.Ct. 1478, 1482, 75 L.Ed.2d 403 (1983)). "Recognizing the 'lack of harmony' among judges on the rules applicable to establishing a prima facie case under title VII, the Supreme Court addressed the difficulty by formulating a 3-step burden-shifting test in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801, 93 S.Ct. 1817, 1823, 36 L.Ed.2d 668 (1973)." Id. (hyperlink added).


STEP 1: The "plaintiff bears the initial burden of establishing a prima facie case of discrimination, which creates a presumption of discrimination." Scrivener v. Clark College, 181 Wn.2d 439, 446, 334 P.3d 541, (2014) (citing, Riehl, 152 Wn.2d at 149-50; Kastanis v. Educ. Emps. Credit Union, 122 Wn.2d 483, 490, 859 P.2d 26, 865 P.2d 507 (1993)) (internal citations and quotation marks omitted) (emphasis & hyperlink added).

STEP 2: "[T]he burden shifts to the defendant, who must articulate a legitimate, nondiscriminatory reason for the adverse employment action." Mikkelsen v. Public Utility District No. 1 of Kittitas County, 189 Wn.2d 516, 527 (Wash. 2017) (internal citations and quotation marks omitted) (emphasis & hyperlink added).

STEP 3: "[I]f the defendant meets this burden, the plaintiff must produce sufficient evidence showing that the defendant's alleged nondiscriminatory reason for the adverse employment action was a pretext." Id. (internal citations omitted) (emphasis & hyperlink added). 


"The purpose of establishing the prima facie elements under McDonnell Douglas is to 'eliminate[ ] the most common nondiscriminatory reasons for the plaintiff's rejection,' namely, that the plaintiff is unqualified for the position or that the position no longer exists." Mikkelsen, 189 Wn.2d at 531 (citing, Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253-54, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)) (emphasis added) (hyperlink added).


Intentional discrimination is difficult to prove. See Mikkelsen189 Wn.2d at 526 (internal citations omitted). Direct, 'smoking gun' evidence of discriminatory motivation is uncommon, because there will rarely be "eyewitness testimony as to the employer's mental processes." Id. (internal citations omitted). As a result, Washington State courts have "repeatedly emphasized that plaintiffs may rely on circumstantial, indirect, and inferential evidence to establish discriminatory action." Id. (internal citations and quotation marks omitted). 

Accordingly, the Washington State Supreme Court "has adopted the standard articulated by McDonnell Douglas in discrimination cases that arise out of RCW 49.60.180 and the common law." Kastanis v. Educational Employees Credit Union, 122 Wn.2d at 490 (1993) (citing, Grimwood v. Univ. of Puget Sound, Inc., 110 Wash.2d 355, 364, 753 P.2d 517 (1988); Baldwin v. Sisters of Providence in Wash., Inc., 112 Wash.2d 127, 136, 769 P.2d 298 (1989)) (emphasis added) (hyperlinks added).


At summary judgment, the following are special considerations, inter alia, when applying the McDonnell Douglas Framework to claims under the Washington Law Against Discrimination:

[1] Summary judgment for an employer is seldom appropriate in employment discrimination cases because of the difficulty of proving discriminatory motivation. 

[2] When the record contains reasonable but competing inferences of both discrimination and nondiscrimination, the trier of fact must determine the true motivation.

[3] To overcome summary judgment, the plaintiff needs to show only that a reasonable jury could find that discrimination was a substantial factor in the employer's adverse employment action. 

See Mikkelsen, 189 Wn.2d at 527-28 (hyperlinks added). 


➣ For more information regarding Step 1 (the prima facie case), read our article entitled: McDonnell Douglas Framework (Step 1): The Prima Facie Case.

➣ For more information regarding Step 2 and the employer's burden to establish a legitimate, nondiscriminatory reason for the adverse employment action, read our article entitled: McDonnell Douglas Framework (Step 2): The Employer's Burden.

➣ For more information regarding Step 3 (the pretext element), read our articles entitled

McDonnell Douglas Framework (Step 3): Proving Pretext

The Pretext Element: Self-Evaluations

The Pretext Element: Six Limitations

The Pretext Element: Two Methods of Proof

➣ To see a Washington State court analyze an actual lawsuit for pretext, read our article entitled: Crabtree v. Jefferson Cnty. Pub. Hosp. Dist. No. 2*.

(*NOTE: The link will take the reader to our external website: Court Slips.)

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If you need legal help, then consider contacting an experienced Washington State Employment Discrimination Attorney as soon as possible to discuss your case. Please note: the information contained in this article is not offered as legal advice and will not form an attorney-client relationship with either this author or Williams Law Group; please see our DISCLAIMER.


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