In the past, we have counseled our clients on steps they can take to avoid creating a “convincing mosaic” of employment discrimination. The Seventh Circuit Court of Appeals first discussed the convincing mosaic of discrimination more than 20 years ago as a metaphor to explain one way that an employee could combine lots of different evidence – none of which might entitle the employee to a trial on its own – and create enough of a picture of potential discrimination to survive summary judgment.
Since the Seventh Circuit’s first discussion of the convincing mosaic, courts increasingly treated it like a legal test that had to be satisfied in order to reach a trial. A few days ago, however, in Ortiz v. Werner Enterprises, No. 15-2574 (7th Cir. Aug. 19, 2016), the Seventh Circuit attempted to put a stop to this practice. It held that it never intended that the “metaphor” it created in 1994 would develop into a strict legal test. And it put district courts on notice that the use of a “convincing mosaic” as a legal requirement would get them reversed: “From now on, any decision of a district court that treats this phrase as a legal requirement in an employment discrimination case is subject to summary reversal, so that the district court can evaluate the evidence under the correct standard.”
What does this mean for employers fighting employment discrimination claims? Probably not too much, right now. The Seventh Circuit has attempted in the past to rein in the use of the convincing mosaic more broadly than it intended, so this opinion is more in the nature of a clarification than a change in the law.
But this opinion may also be an omen of more open rebellion against the prevailing legal rules used in employment cases. For more than forty years, both employers and employees have used the McDonnell Douglas test, named after the Supreme Court’s 1973 decision in McDonnell Douglas Corp. v. Green, to determine whether an employee’s discrimination claim can survive summary judgment. Under McDonnell Douglas, the parties engage in a series of burden-shifting steps to determine whether a trial is necessary, with the employee ultimately needing to show that any legitimate reason offered for the employee’s termination is “pretext” to cover up discrimination.
But the judges have begun to chafe against the formalistic rules and burden shifting imposed by McDonnell Douglas. This began back in 2012, when Judge Hamilton wrote a separate opinion in Coleman v. Donahoe that called for the elimination of the McDonnell Douglas test (to “finish the job,” as Judge Hamilton put it). This week’s opinion, while expressing fealty to McDonnell Douglas, expresses the same desire to cut through rules to answer the key question: “whether the evidence would permit a reasonable factfinder to conclude that the plaintiff’s race . . . caused the discharge or other adverse employment action.” With more judges pushing against formal step-by-step tests and for more freedom to decide how much evidence is “enough,” it remains to be seen how this development will affect employers defending against discrimination claims.