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鈥淭hat was a catch!鈥� screamed my neighbor who is a diehard Bills fan (it鈥檚 unclear why; he is not from Buffalo, is too young to have appreciated the Jim Kelly era, and is not some heir to a folding table fortune). As a fan of Brandin Cooks, I had to agree with him. We both stood shocked as the play was ruled an interception and the Denver Broncos took over possession. How could a player have the ball and be down by contact but not considered 鈥渄own?鈥� It caused whiplash and forced us to reassess what we consider a catch.

A similar sense of whiplash may confront employers should other circuit courts follow the Eleventh Circuit鈥檚 heightened criticism of the McDonnell Douglas framework. Outlined below is a quick reminder of the McDonnell Douglas framework, the criticism of it by the U.S. Court of Appeals for the Eleventh Circuit, and why it matters to employers.

Background

The McDonnell Douglas framework states that once the employee establishes a prima facie case, the employer must offer a legitimate, nondiscriminatory reason for the adverse action, and the burden then returns to the employee to show that the reason is merely pretext for discrimination.

Court鈥檚 criticism

The Eleventh Circuit, in its latest opinion, made clear that while an employer鈥檚 legitimate business reason remains relevant, it is no longer sufficient, standing alone, to dispose of a case at summary judgment. Under the 鈥渃onvincing mosaic鈥� standard, courts are required to evaluate the totality of the evidence 鈥� including suspicious timing, shifting explanations, disparate treatment of similarly situated employees, and ambiguous remarks 鈥� without forcing the analysis into rigid, step-by-step frameworks.

As a result, employers should expect increased scrutiny of circumstantial evidence, greater difficulty obtaining early dismissal of discrimination and retaliation claims, and more cases proceeding to trial 鈥� even where performance or policy violations are at issue.

Three best practices for employers

To manage risk under this evolving standard, employers should stick to the basics: be clear on expectations, be consistent in how rules are applied, and document everything as if someone else will be reading it later.

1. Get clear on roles and expectation. Tight job descriptions, documented expectations, and objective metrics make decisions easier to explain 鈥� and harder to second-guess later.
2. Be boringly consistent. Courts love comparators. If one policy violation triggers an investigation or discipline, make sure you鈥檙e doing the same thing for everyone and not just the squeaky wheels.
3. Document like litigation is inevitable (because it is). Performance feedback, investigation notes, and contemporaneous emails are your best defense when someone claims the action came out of nowhere or was retaliatory.

The folks in the replay booth eventually moved on, but the rule didn鈥檛 change 鈥� and neither did the standard everyone would be arguing about on the next play. That鈥檚 the real parallel here. While the McDonnell Douglas framework has not been completely thrown out, recent decisions signal that courts may start watching employment decisions with a sharper eye and less patience for technical shortcuts.

Employers shouldn鈥檛 wait for the call to be overturned. Now is the time to tighten expectations, apply rules consistently, and document decisions as if they鈥檒l be replayed in slow motion 鈥� because if this trend spreads, they will be.

Stephen Scott is a partner in the Portland office of Fisher Phillips, a national firm dedicated to representing employers鈥� interests in all aspects of workplace law. Contact him at 503-205-8094 or [email protected].

The opinions, beliefs and viewpoints expressed in the preceding commentary are those of the author and do not necessarily reflect the opinions, beliefs and viewpoints of the Daily Journal of Commerce or its editors. Neither the author nor the 91视频 guarantees the accuracy or completeness of any information published herein.