Circuit Court Sticks with Troubled Employment Discrimination Test

The 5th U.S. Circuit Court of Appeals has declined to abandon the McDonnell Douglas test for employment discrimination claims, despite two judges calling it 'wrong'. The court affirmed summary judgment in favor of Procter & Gamble Co. in a White former employee's race bias lawsuit. In their decision, the judges acknowledged that the McDonnell Douglas framework has been widely criticized and may no longer be necessary.

The test was established in 1973 by the U.S. Supreme Court in McDonnell Douglas Corp. v. Green, but some justices have since questioned its validity. Justice Clarence Thomas has called it an example of 'judge-made doctrines' that can distort the underlying statutory text and impose unnecessary burdens on litigants.

The plaintiff in this case claimed he was terminated due to racial bias and retaliation for raising concerns about discrimination. However, the 5th Circuit held that Procter & Gamble offered a legitimate reason for terminating him: documentation showing he violated company policies.