The Confusion of McDonnell Douglas: A Path Forward for Reverse Discrimination Claims

It is no secret that Title VII of the Civil Rights Act of 1964 is one of the most significant pieces of legislation ever passed by the United States Congress. Fiercely debated and enacted during the Civil Rights Movement of the 1960s, Title VII prohibits employers from engaging in various forms of discrimination within the workplace. For instance, employers may not unlawfully consider race, color, religion, sex, or national origin in employment decisions. Given Bostock v. Clayton County’s recent extension of Title VII’s protections to lesbian, gay, bisexual, transgender, and queer workers, this Article posits that evaluating Caucasian workers’ “reverse discrimination” claims is the next great battle to ensue under Title VII. The United States Supreme Court rightly observed that Title VII’s protections apply with equal force to Caucasians. But there is an absence of Court precedent, accompanied with conflicting views among the federal appellate courts, about how Caucasians prove their reverse discrimination claims under Title VII. The federal appellate courts’ lack of consensus results from the Supreme Court’s seminal opinion in McDonnell Douglas Corp. v. Green, which permits a plaintiff to establish a rebuttable inference of discrimination through a prima facie case. The prima facie case initially requires a showing of one’s racial minority status. Observing the obvious issue of Caucasians not being racial minorities, some federal courts require Caucasians to instead provide “background circumstances” or “sufficient evidence” for a prima facie case. Others entirely reject the background circumstances requirement and permit Caucasians to proceed similarly to racial minorities. Noticeably, the background circumstances test has not been imposed upon racial minorities. This Article critiques and justifies the background circumstances test for reverse discrimination claims on historical, legal, and theoretical bases but recognizes it raises constitutional concerns under equal protection jurisprudence. This Article then explores constitutional resolutions to the background circumstances test but concludes that the judge-made doctrine should be abandoned to completely insulate Title VII from judicial review. As a final observation, this Article examines the consequences of eradicating the background circumstances requirement and replacing it with a holistic assessment of the prima facie case