MCLE SELF-STUDY: MCDONNELL DOUGLAS: THE END IS NEAR?

AUTHOR^*

Andrew H. Friedman

A duo of conservative U.S. Supreme Court Justices—Clarence Thomas and Neil M. Gorsuch—are leading an increasingly urgent charge to reverse or dramatically curtail McDonnell Douglas Corporation v. Green.¹ And it’s with the most unlikely of urgings: They believe that the tripartite burden-shifting test set out in the case is too employer-friendly as they contend that it not only "requires a plaintiff to prove too much at summary judgment," but also that it "fails to encompass the various ways" in which a plaintiff could prove a claim.²

Justices Thomas and Gorsuch also criticize McDonnell Douglas for a host of additional reasons, arguing that it: