Earlier this week, the Sixth Circuit resuscitated the individual claim and proposed class-action of Plaintiff-Appellant Kathryn Keys (“Plaintiff”), an African-American female who alleged that her former employer, Defendant-Appellee Humana, Inc. (“Humana”) engaged in a pattern of discrimination against African American managers and professional staff. Keys v. Humana, Inc., No. 11-5472 (6th Cir. July 2, 2012).
Granting Humana’s motion to dismiss, the lower court held that the Plaintiff failed to allege facts sufficient to plead a prima facie case of intentional discrimination, citing to the burden shifting framework of McDonnell Douglas, which is used to evaluate claims of race discrimination based on circumstantial evidence.
Finding the lower court’s holding in direct conflict with Supreme Court precedent, the Sixth Circuit clarified that the McDonnell Douglas paradigm is an evidentiary standard and not a pleading requirement. See e.g., Swierkiewicz v. Sorema, 534 U.S. 506, 510 (2002); see also Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) (the application of McDonnell Douglas at the pleading stage is “contrary to the Federal Rules structure of liberal pleading requirements”); Ashcroft v. Iqbal, 556 U.S. 662 (2009). Concluding the Plaintiff tendered more than “naked assertion[s]” in her Complaint and sufficiently pled a pattern of discrimination satisfying Civil Rule 8(a), the Sixth Circuit reversed and remanded the matter for proceedings consistent with its opinion.
This case comes less than a week after the Sixth Circuit handed down its hotly contested decision in Litton v. Talawanda School District, Case No. 10-3559 (June 26, 2012), where it held that once “the case proceed[s] to trial…we are no longer concerned with whether the plaintiff established a [McDonnell Douglas] prima facie case, but instead focus on the actual question of discrimination.” While it is unclear how far the Court will continue to narrow the reach of the burden shifting articulated in McDonnell Douglas, employers should take this as an opportunity to review current practices to determine if such practices cause disparate impact on employees within protected classifications.