The McDonnell Douglas Burden Shifting Framework

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


 THE ORIGIN OF THE FRAMEWORK

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).

THE MCDONNELL DOUGLAS FRAMEWORK

The McDonnell Douglas burden-shifting framework has three steps:

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 POLICY BEHIND THE FRAMEWORK

"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).

WASHINGTON STATE ADOPTS THE FRAMEWORK

Intentional discrimination is difficult to prove. See Mikkelsen, 189 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 483, 490, 859 P.2d 26 (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).

SUMMARY JUDGMENT

At summary judgment, the following are special considerations, inter alia, when applying the McDonnell Douglas Framework to WLAD claims:

[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. 

LEARN MORE

If you would like to learn more, 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, PS; please see our DISCLAIMER.

–gw

Definition of State Employee Whistleblower

by Gregory Williams, Esq. | Under Washington State law, what is the definition of state employee whistleblower status? Here's my point of view (NOTE: please read our DISCLAIMER before proceeding). 

I. WASHINGTON LAW AGAINST DISCRIMINATION

Under the Washington Law Against Discrimination (WLAD), it is an unfair practice, with very few exceptions, for an employer to refuse to hire any person, to discharge or bar any person from employment, or to discriminate against any person in compensation or in other terms and conditions of employment because of age (40+); sex (including pregnancy); marital status; sexual orientation (including gender identity); race; color; creed; national origin; honorably discharged veteran or military status; HIV/AIDS and hepatitis C status; the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability; and state employee or health care whistleblower status. It is also an unfair practice for an employer to retaliate against an employee because the employee complained about job discrimination or assisted with a job discrimination investigation or lawsuit.

II. DEFINITION OF STATE EMPLOYEE WHISTLEBLOWER

In Washington State, there are generally two categories for state employee whistleblower status: (1) reporting and/or perceived reporting; and (2) reprisals and/or retaliatory action.

(1) Regarding Reporting & Perceived Reporting

According to Washington State law, the term “whistleblower” means as follows:

(i) An employee who in good faith reports alleged improper governmental action to the auditor or other public official, as defined in subsection (7) of this section; or

(ii) An employee who is perceived by the employer as reporting, whether they did or not, alleged improper governmental action to the auditor or other public official, as defined in subsection (7) of this section.

RCW 42.40.020(10)(a)(i)-(ii).

(2) Regarding Reprisals & Retaliatory Action

For purposes of the provisions of chapter 42.40 RCW and chapter 49.60 RCW relating to reprisals and retaliatory action, the term “whistleblower” also means as follows:

(i) An employee who in good faith provides information to the auditor or other public official, as defined in subsection (7) of this section, and an employee who is believed to have reported asserted improper governmental action to the auditor or other public official, as defined in subsection (7) of this section, or to have provided information to the auditor or other public official, as defined in subsection (7) of this section, but who, in fact, has not reported such action or provided such information; or

(ii) An employee who in good faith identifies rules warranting review or provides information to the rules review committee, and an employee who is believed to have identified rules warranting review or provided information to the rules review committee but who, in fact, has not done so.

RCW 42.40.020(10(b)(i)-(ii).

III. ADDITIONAL DEFINITIONS

It’s important to note that some of the above-mentioned terms are defined by Washington State law as follows:

“Auditor” means the office of the state auditor. RCW 42.40.020(1).

“Employee” means any individual employed or holding office in any department or agency of state government. RCW 42.40.020(2).

“Good faith” means the individual providing the information or report of improper governmental activity has a reasonable basis in fact for reporting or providing the information. An individual who knowingly provides or reports, or who reasonably ought to know he or she is providing or reporting, malicious, false, or frivolous information, or information that is provided with reckless disregard for the truth, or who knowingly omits relevant information is not acting in good faith. RCW 42.40.020(3).

“Improper governmental action” means any action by an employee undertaken in the performance of the employee’s official duties:

(i) Which is a gross waste of public funds or resources as defined in this section;

(ii) Which is in violation of federal or state law or rule, if the violation is not merely technical or of a minimum nature;

(iii) Which is of substantial and specific danger to the public health or safety;

(iv) Which is gross mismanagement;

(v) Which prevents the dissemination of scientific opinion or alters technical findings without scientifically valid justification, unless state law or a common law privilege prohibits disclosure. This provision is not meant to preclude the discretion of agency management to adopt a particular scientific opinion or technical finding from among differing opinions or technical findings to the exclusion of other scientific opinions or technical findings. Nothing in this subsection prevents or impairs a state agency's or public official's ability to manage its public resources or its employees in the performance of their official job duties. This subsection does not apply to de minimis, technical disagreements that are not relevant for otherwise improper governmental activity. Nothing in this provision requires the auditor to contract or consult with external experts regarding the scientific validity, invalidity, or justification of a finding or opinion; or

(vi) Which violates the administrative procedure act or analogous provisions of law that prohibit ex parte communication regarding cases or matters pending in which an agency is party between the agency's employee and a presiding officer, hearing officer, or an administrative law judge. The availability of other avenues for addressing ex parte communication by agency employees does not bar an investigation by the auditor. RCW 42.40.020(6)(a)(i)-(vi).

“Improper governmental action” does not include personnel actions, for which other remedies exist, including but not limited to employee grievances, complaints, appointments, promotions, transfers, assignments, reassignments, reinstatements, restorations, reemployments, performance evaluations, reductions in pay, dismissals, suspensions, demotions, violations of the state civil service law, alleged labor agreement violations, reprimands, claims of discriminatory treatment, or any action which may be taken under chapter 41.06 RCW, or other disciplinary action except as provided in RCW 42.40.030. RCW 42.40.020(6)(b).

“Public official” means the attorney general’s designee or designees; the director, or equivalent thereof in the agency where the employee works; an appropriate number of individuals designated to receive whistleblower reports by the head of each agency; or the executive ethics board. RCW 42.40.020(7).

IV. FURTHER DEFINITIONS

And some of the above-referenced definitions also contain legal terms that have been further defined as follows:

“Gross mismanagement” means the exercise of management responsibilities in a manner grossly deviating from the standard of care or competence that a reasonable person would observe in the same situation. RCW 42.40.020(4).

“Gross waste of funds” means to spend or use funds or to allow funds to be used without valuable result in a manner grossly deviating from the standard of care or competence that a reasonable person would observe in the same situation. RCW 42.40.020(5).

“Substantial and specific danger” means a risk of serious injury, illness, peril, or loss, to which the exposure of the public is a gross deviation from the standard of care or competence which a reasonable person would observe in the same situation. RCW 42.40.020(8).

“Use of official authority or influence” includes threatening, taking, directing others to take, recommending, processing, or approving any personnel action such as an appointment, promotion, transfer, assignment including but not limited to duties and office location, reassignment, reinstatement, restoration, reemployment, performance evaluation, determining any material changes in pay, provision of training or benefits, tolerance of a hostile work environment, or any adverse action under chapter 41.06 RCW, or other disciplinary action. RCW 42.40.020(9).

LEARN MORE

If you would like to learn more, 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, PS; please see our DISCLAIMER.

–gw