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

WLAD: Harassment & Offensive Conduct At Work

by Gregory Williams, Esq. | Pursuant to a claim of hostile work environment under the Washington Law Against Discrimination (WLAD), how may a plaintiff establish the first element -- that the harassment was offensive and unwelcome? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

WASHINGTON LAW AGAINST DISCRIMINATION

Under 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 (i.e., discharge, expel, or otherwise discriminate) against a person because the person complained about any practices forbidden by the WLAD, or because the person has filed a charge, testified, or assisted in any proceeding under WLAD.

HOSTILE WORK ENVIRONMENT

Generally, to establish a prima facie claim of hostile work environment against an employer, the employee must produce competent evidence of each of the following four elements:  (1) that the harassment was offensive and unwelcome; (2) that it occurred because of the employee’s membership in a protected class; (3) that it affected the terms and conditions of employment/membership; and (4) that the harassment can be imputed to the employer. See, e.g., Glasgow v. Georgia-Pacific Corp., 103 Wn.2d 401, 406-07, 693 P.2d 708 (1985). This article will address solely the first (1st) element — that the harassment was offensive and unwelcome.

OFFENSIVE & UNWELCOME CONDUCT

To establish offensive and unwelcome conduct, the complained of conduct must be unwelcome in the sense that the victim-employee did not solicit or incite it, and in the further sense that he/she regarded the conduct as undesirable or offensive. See id. Typically, an employee's internal complaints about the harassment, based on a protected class, are evidence that the employee subjectively believed he/she was being harassed. Thus, an employee's properly drafted complaints of discrimination to the employer/management can be a powerful step in establishing this element.

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