Decades-Old Workplace Bias Burden Test Under Circuit Scrutiny

A growing number of federal appeals court rulings are finding a misapplication of a long-standing US Supreme Court burden-shifting standard used to assess liability in employment discrimination cases, igniting further debate over its usefulness.

The high court’s 1973 McDonnell Douglas Corp. v. Green decision established a three-step alternative method for plaintiffs to prove bias when direct evidence—like explicit discriminatory statements connected to race, gender, and other protected characteristics—isn’t available. It specifically alternates the parties’ burden of proof to determine if a worker was fired or experienced a negative employment action because of unlawful bias..

But rulings this month from the ...