New England Biz Law Update
Employers may find themselves confronting whiplash if other federal appeals courts follow the 11th Circuit Court of Appeals’ recent heightened criticism of the McDonnell Douglas framework. Outlined below is a quick reminder of that framework, the criticism of it by the 11th Circuit, and why it matters to employers.
Background
The McDonnell Douglas framework states that once the employee establishes a prima facie case, the employer must offer a legitimate, nondiscriminatory reason for the adverse action, and the burden then returns to the employee to show that the reason is merely pretext for discrimination.
Court’s criticism
The 11th Circuit, in its latest opinion, made clear that while an employer’s legitimate business reason remains relevant, it is no longer sufficient, standing alone, to dispose of a case at summary judgment. Under the “convincing mosaic” standard, courts are required to evaluate the totality of the evidence — including suspicious timing, shifting explanations, disparate treatment of similarly situated employees, and ambiguous remarks — without forcing the analysis into rigid, step-by-step frameworks.
As a result, employers should expect increased scrutiny of circumstantial evidence, greater difficulty obtaining early dismissal of discrimination and retaliation claims, and more cases proceeding to trial — even where performance or policy violations are at issue.
Three best practices for employers
To manage risk under this evolving standard, employers should stick to the basics: be clear on expectations, be consistent in how rules are applied, and document everything as if someone else will be reading it later.
Get clear on roles and expectation. Tight job descriptions, documented expectations, and objective metrics make decisions easier to explain — and harder to second-guess later.
Be boringly consistent. Courts love comparators. If one policy violation triggers an investigation or discipline, make sure you’re doing the same thing for everyone and not just the squeaky wheels.
Document-like litigation is inevitable (because it is). Performance feedback, investigation notes, and contemporaneous emails are your best defense when someone claims the action came out of nowhere or was retaliatory.
While the McDonnell Douglas framework has not been completely thrown out, recent decisions signal that courts may start watching employment decisions with a sharper eye and less patience for technical shortcuts.
Now is the time to tighten expectations, apply rules consistently, and document decisions as if they’ll be replayed in slow motion — because if this trend spreads, they will be.
Stephen Scott is a partner in the Portland office of Fisher Phillips, a national firm dedicated to representing employers’ interests in all aspects of workplace law. Contact him at 503-205-8094 or [email protected].
