Subverting Rule 56? McDonnell Douglas, White v. Baxter Healthcare Corp. , and the Mess of Summary Judgment in Mixed-Motive Cases

Summary judgment is often the make-or-break setting for a plaintiff alleging illegal employment discrimination. For most plaintiffs, the present law of summary judgment in employment discrimination will end their case. Plaintiffs are losing most of the cases they file because they are frequently unable to survive an employer's motion for summary judgment. That result may be about to change if the Sixth Circuit's ruling in White v. Baxter Healthcare Corp. gains traction. While McDonnell Douglas creates a heightened burden for plaintiffs to meet at summary judgment, Baxter effectively removes any burden on a plaintiff necessary to survive an employer's summary judgment motion. This paper argues that both the use of McDonnell Douglas at summary judgment, and the new Baxter standard, effectively circumvent Rule 56.