Wednesday, June 8, 2011

Hello, Old Friend: Tennessee Legislature Reinstates McDonnell Douglas Burden Shifting

A new law recently passed by the Tennessee legislature and sent to the Governor for his signature will reinstate the framework for analyzing discrimination and retaliation claims that had been in place for thirty-seven years, but was tossed out by the Tennessee Supreme Court last September.

In 1973, the United States Supreme Court adopted a “burden-shifting” analysis for evaluating claims of racial discrimination claims under Title VII. The burden-shifting analysis was labeled “McDonnell Douglas burden shifting” after the name of the Supreme Court decision that established it. In the years following the Supreme Court’s decision, all federal courts and state courts in nearly every state adopted the McDonnell Douglas burden shifting analysis for all types of discrimination claims under Title VII, other federal laws such as the ADA, ADEA, and state anti-discrimination laws. This analysis was widely accepted and used in nearly every discrimination case for over 35 years – so much so that it rolls off the tongue of every employment lawyer like the pledge of allegiance.

Last September, the Tennessee Supreme Court discarded the McDonnell Douglas burden shifting analysis for common law retaliation claims -- and in all probability, also for all discrimination and statutory retaliation claims in state court. The Court held that the burden shifting analysis adopted by the United States Supreme Court was inconsistent with Tennessee’s standard for summary judgment. (You can read the Supreme Court's opinion here and our post about the case here). In one fell swoop, the Supreme Court fundamentally altered the analysis for claims of discrimination and retaliation in Tennessee state courts. The decision had the practical effect of making it more difficult for employers to obtain summary judgment dismissing meritless claims of discrimination and retaliation.

In its latest session, the legislature reacted by passing a bill that adds new sections to the Tennessee Human Rights Act and the provisions related to retaliation claims. The new sections explicitly reject and legislatively overrule the Supreme Court’s decision, and “establish the McDonnell Douglas framework as the appropriate and legally required framework for the consideration of evidence offered during all stages of the proceedings in employment discrimination and retaliation cases.”

The new statutes bring Tennessee law back in line with federal law and the law of a vast majority of the states. Importantly, the new statutes will eliminate uncertainty that would have resulted from a sea change in the law and will provide a more predictable standard for employers to obtain summary judgment dismissing frivolous discrimination and retaliation claims.

A copy of the bill can be found at

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