Recreating Diversity in Employment Law by Debunking the Myth of the Mcdonnell-Douglas Monolith

Abstract

The McDonnell-Douglas framework is one of the primary methods used by courts to evaluate discrimination claims based on circumstantial evidence. Although McDonnell-Douglas often is referred to as a singular test, it is actually a collection of different tests gathered rather deceptively under one name. Over the years, federal courts considering state law claims have increasingly applied the McDonnell-Douglas framework to these state claims, without considering whether the same result would occur under state law. The federal courts' rather monolithic view of McDonnell-Douglas is choking debate on important issues of employment law and denying states the ability to weigh in on significant policy issues. In addition to ignoring the potential policy choices of states, some federal courts have chosen to trump state employment law by declaring that application of McDonnell-Douglas to state claims is mandated by vertical choice of law. This use of vertical choice of law is disingenuous and contrary to the Supreme Court's pronouncements of vertical choice of law. Additionally, it improperly limits the ability of states to create diversity in employment law by creating substantive standards that are different from those created under federal law.