Courts have historically determined the sufficiency of employment discrimination and retaliation claims via two analytical methods, i.e. the “direct” and “indirect” methods. Despite the methods’ acceptance through the years, the Seventh Circuit has opined on more than one occasion that both methods consider largely the same pieces of information.1 Indeed, this author has long considered the indirect method as simply one of many combinations of evidence that would satisfy the direct method. In August 2016, the Seventh Circuit finally posed, and answered, the following question: “[w]hy have two tests if they consider the same information and answer the same question?”2
This paper will first briefly describe the direct and indirect methods of analyzing an employment discrimination or retaliation claim. It will then discuss the effect of the Seventh Circuit’s decision in Ortiz v. Werner Enterprises, Inc. on the analysis of such claims. Finally, it will point out that Ortiz is consistent with the Supreme Court decision of McDonnell Douglas Corp v. Green,3 from which the direct-indirect dichotomy arose.
1. The Direct and Indirect Methods.
The direct method requires that the plaintiff establish that (1) he or she belonged to a protected class or engaged in protected activity; (2) he or she suffered an adverse employment action; and (3) there was a causal connection between the protected class or activity and employment action.4 Courts have identified the following types of evidence as indicative of a causal connection between an employee’s protected class or activity and the employer’s adverse action: admissions by the employer, “suspicious timing, ambiguous statements from which a retaliatory intent can be drawn, evidence of similar employees being treated differently, or evidence that the employer offered a pretextual reason for the termination.”5 Some courts have required that the above-described evidence create a “convincing mosaic” of discrimination or retaliation.6
The indirect method requires that a plaintiff establish that he or she (i) was in a protected class or engaged in protected activity; (ii) was qualified for the job in question; (iii) experienced an adverse employment action; and (iv) received less favorable treatment than similarly situated individuals that were not in the plaintiff’s protected class or did not engage in the plaintiff’s protected activity. If the plaintiff makes this initial showing, the employer has to proffer a legitimate, non-discriminatory/retaliatory reason for the employment decision. If the employer makes such a showing, then the plaintiff has to show that the employer’s reasons constituted pretext.7
2. Analysis of Employment Discrimination and Retaliation Claims After Ortiz.
In Ortiz, the Seventh Circuit concluded that “[t]he use of disparate methods and the search for elusive mosaics has complicated and sidetracked employment-discrimination litigation for many years.”8 It responded by overruling its prior decisions to the extent that they rely on “convincing mosaics” as a governing legal standard and/or “insist on the use of the direct-and-indirect framework.”9
In doing so, Ortiz restored the focus of the analysis to the ultimate issue, i.e. whether the evidence would permit a reasonable factfinder to conclude that the plaintiff’s [protected class or activity] caused the… adverse employment action.”10 In answering this question, the court directed that
[e]vidence must be considered as a whole, rather than asking whether any particular piece of evidence proves the case by itself – or whether just the ‘direct’ evidence does so, or the ‘indirect’ evidence. Evidence is evidence. Relevant evidence must be considered and irrelevant evidence disregarded, but no evidence should be treated differently from other evidence because it can be labeled ‘direct’ or ‘indirect.’11
In other words, courts and parties should still look to the types of evidence that have previously been identified as indicative of discrimination and/or retaliation. However, they should not worry about whether these indicia of discrimination and retaliation constitute evidence under the direct or indirect method. Rather, they should only consider whether the evidence, when taken as a whole, would allow a reasonable juror to conclude that the plaintiff’s protected class or activity caused the adverse employment action.
3. The Foregoing is Consistent with McDonnell Douglas.
Ortiz could not overrule the case from which the direct-indirect dichotomy arose, McDonnell Douglas, because that case was decided by the Supreme Court. However, a review of both cases establishes that Ortiz is entirely consistent with McDonnell Douglas.
Ortiz simply clarifies that the plaintiff can establish his or her initial burden of providing evidence of discrimination or retaliation via a variety of types of evidence. This view is entirely consistent with McDonnell Douglas, which acknowledged that the four pieces of evidence it described as satisfying the plaintiff’s initial burden “is not necessarily applicable in every respect to differing factual situations.”12 The Court reiterated this point shortly after deciding McDonnell Douglas when it noted that “[t]he method suggested in McDonnell Douglas… was never intended to be rigid, mechanized, or ritualistic.”13
Indeed, the Ortiz court expressly noted that its decision “does not concern McDonnell Douglas or any other burden-shifting framework…”14 However, in this litigator’s experience, the McDonnell Douglas burden-shifting framework has become irrelevant in most cases, because plaintiffs generally include their evidence of pretext when attempting to establish their initial burden of providing evidence of discrimination or retaliation. When this occurs, the burden-shifting framework of McDonnell Douglas becomes superfluous.
As with any essay regarding the law, there are a myriad of circumstances that could affect the foregoing analysis. A lawyer should always be consulted prior to taking any steps that could affect one’s legal rights.
1 See e.g. Harper v. C.R. England, Inc., 687 F. 3d 297, 314 (7th Cir. 2012); Hutt v. AbbVie Products, LLC, 757 F. 3d 687, 691 (7th Cir. 2014).
2 Ortiz v. Werner Enterprises, Inc., 834 F. 3d 760, 765 (7th Cir. 2016).
3 411 U.S. 792 (1973).
4 See e.g. Coleman v. Donahoe, 667 F. 3d 835 (7th Cir. 2012).
5 See e.g. id; Pagel v. TIN, Inc., 695 F. 3d 622, 631 (7th Cir. 2012).
6 Ortiz, 834 F.3d at 763-5.
7 Coleman, 667 F. 3d at 845.
8 Ortiz, 834 F. 3d at 764.
9 Id. at 765-6.
10 Id. at 765.
11 Id. at 765.
12 McDonnell Douglas, 411 U.S. at 802, fn. 13
13 Furnco Const. Corp. v. Waters, 438 U.S. 567, 577 (1978).
14 Ortiz, 834 F. 3d at 766.
