McDonnell Douglas An Evolving Proposition
A recent decision from the U.S. Court of Appeals for the District of Columbia suggests that the four-part prima facie case that courts have utilized to analyze discrimination claims since the Supreme Court's landmark 1973 McDonnell Douglas Corp. v. Green decision may be changing. In Chappell-Johnson v. Powell the court relied on a three-part prima facie case allowing an employee to meet her burden by showing that she suffered an unfavorable employment action which "gives rise to an inference of discrimination." The approach set forth in Chappell-Johnson considerably broadens the ways in which employees can satisfy their prima facie burdens in failure-to-promote and possibly other cases.
Chappell-Johnson claimed that the FDIC's (her employer's) decision not to promote her violated Title VII and the Age Discrimination in Employment Act. Relying on McDonnell Douglas, the district court granted the FDIC's motion for summary judgment on the basis that Chappell-Johnson could not establish all four requirements of her prima facie case: (i) that she belongs to a protected class; (ii) that she applied and was qualified for a job for which the employer was seeking applicants; (iii) that despite her qualifications, she was rejected; and (iv) that after her rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications The district court found that because the position Chappell-Johnson sought was never filled, she could not establish the fourth prong of her prima facie case and thus could not establish an "actionable injury".
The court of appeals reversed. Noting the Supreme Court 's emphasis on "flexibility" in analyzing discrimination cases, the court found that because Chappell-Johnson could produce evidence that gave rise to an inference of discrimination, the fact that the position she sought was never filled did not doom her claim. Specifically, the court found that Chappell-Johnson's argument that non-African-American and younger employees were given the opportunity to compete for a vacant position where she was not could satisfy her prima facie burden.
If other circuits adopt the D.C. Circuit's approach, a plaintiff's inability to establish one of the prongs of her prima facie case may not be determinative. In failure to hire and promote cases, employers may not be shielded by the fact that the position applied for was not filled. If this formulation is adopted, a plaintiff would be able to satisfy her prima facie case by pointing to any conduct or circumstances which might give rise to an inference of discrimination, making summary judgment more difficult.
We will be closely monitoring this decision and its treatment by other courts.
Schiff Hardin LLP