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Brian Rochel Presents at CLE on Minnesota Employment Law

On March 30, 2022, Brian Rochel presented on a panel entitled “McDonnell Douglas and the Direct Method – A New Normal on the Horizon?” The presentation focused on the McDonnell Douglas (or indirect) burden shifting method for proving discrimination and retaliation claims. The Minnesota Supreme Court is currently deciding whether Minnesota courts will continue applying the McDonnell Douglas framework. In Hanson v. DNR, the Supreme Court was asked to abolish use of the McDonnell Douglas framework because it has become problematic over the several decades it has developed.

Hanson, along with amici curiae Minnesota NELA and ELA-UM, argued that McDonnell Douglas has been misused on Rule 56 and resulted in dismissing employment claims that should appropriately be tried to a jury.

In the March 30 CLE, Brian laid out the arguments made by the employee in Hanson, and the panelists discussed the pros and cons of McDonnell Douglas in employment litigation–as well as what employment litigation may look like in the absence of the familiar framework.

The panel also discussed Friend v. Gopher Company, Inc., a Minnesota Court of Appeals case holding that McDonnell Douglas is not required to be applied in every case. Brian argued that means that regardless of the Supreme Court’s decision in Hanson v. DNR, employees may still choose to forego McDonnell Douglas in favor of the “direct method” to prove cases at trial and present evidence on summary judgment.

A decision is expected in Hanson v. DNR soon, check back for more updates. If you have questions about Minnesota employment law, proving claims of discrimination or retaliation, or related topics, please contact us.

Kitzer & Rochel Publish Article in FBA Labor & Employment Magazine

Teske Katz Kitzer & Rochel partners Brian Rochel and Phillip Kitzer co-authored an article in the Spring issue of The Labouring Oar, published by the Federal Bar Association’s (FBA) Labor and Employment Law Section. Phillip and Brian wrote the article along with Frances Baillon, partner at Baillon Thome. The article, titled “Is McDonnell Douglas Too Burdensome? Circuits Question the Utility of the Decades Old Burden-Shifting Model,” analyzes recent court decisions calling into question the usefulness of the McDonnell Douglas burden-shifting scheme.

Noting the varying approaches in the federal circuits of applying the McDonnell Douglas test to employment claims, at least two judges have advocated for doing away with burden shifting, otherwise called the indirect method, altogether because of the confusion caused by its application.  District Judge Paul Magnuson, sitting on the Eighth Circuit panel by designation, provided a lengthy exposition of McDonnell Douglas in Griffith v. City of Des Moines, 387 F.3d 733 (8th Cir. 2004), calling the direct/indirect evidence distinction a “legal fiction,” and opined that it “should have fallen into disuse after Congress amended the Civil Rights Act in 1991.”  Likewise, Seventh Circuit Chief Judge Diane Wood provided a well-reasoned critique of the indirect method in Coleman v. Donahoe, 667 F.3d 835 (7th Cir. 2012).  Judge Wood wrote, “Courts manage tort litigation every day without the ins and outs of these methods of proof, and I see no reason why employment discrimination litigation (including cases alleging retaliation) could not be handled in the same straight-forward way.” The article concluded by suggesting the United States Supreme Court may ultimately take the issue to resolve the confusion within the circuits.

Click here to view the full article.