More of your discrimination cases headed for trial in the new year? We think so!

A case decided on December 5 by the U.S. 11th Circuit Court of Appeals—a sister federal appeals court to our 5th Circuit, which covers Texas—looks like it is being teed up for review by the Supreme Court of the United States (SCOTUS). The issue: What does it take to get a case dismissed before trial? And, it looks as if more claims will be going to trial. Buckle up!

Traditional: The Pretext Approach

Back in 1973—a mere nine years after Title VII of the Civil Rights Act of 1964 was enacted—SCOTUS decided in the McDonnell Douglas case how a trial court should determine whether to grant summary judgment (dismissal without a trial) to the employer. Summary judgment is when all the facts have been collected by both sides and the trial court decides, in applying the law, whether to dismiss the case.

The key phrase is “applying the law.” The Court said this would be the law: If an employer comes up with a valid reason or reasons for the alleged discrimination, then it is up to the suing employee to show both that the reason is false and that the real reason was unlawful discrimination. This is called pretext. That’s a big burden on the employee. But courts across the country embraced this formulation because it allowed them to mow down claims and manage their dockets.

Contemporary: The Mosaic Approach