To Burden Shift or Not to Burden Shift, That is the Question…So, is Zaitz the Answer?

By Michael K. Browne, Assistant Director – Complaint Investigations

Zaitz Decision PDF

Click the image for a link to the Zaitz decision (PDF)

Part of the mission of the civil rights complaint investigation program is to advance excellence in the work that we do specifically and for the practice area of civil rights enforcement in general.  We embrace this principle in the term scholarship.  To us, this term not only describes our ongoing academic journey to acquire knowledge in our profession, but also the responsibility to share our experiences through mentorship, outreach and educational opportunities to the community.

In the past year, many will note that the format for our civil rights decisions on case investigations changed in structure.  In particular, we have initiated a new protocol, intentionally outlining our rationale for the outcome without explicitly identifying the case names and citation to the legal principles we apply.  As a best practice, this technique preserves our independence as a quasi-judicial decision-making body in an administrative system.  From a practical perspective, this procedure underlies our keen understanding that Minnesota case law may ultimately govern should one of our investigations find its way to the court system.  Thus, it is in the spirit of scholarship that we comment on recent select decisions from the appellant courts.

The Burden-Shifting Analysis

The concept of the shifting burdens of proof in discrimination cases is not new (it’s commonly called the McDonnell Douglas burden-shifting analysis).  It is best described as a three-step process.  First, the burden is placed on the complaining party to produce evidence that establishes a prima facie case.  If that burden is met, at the second step, the burden shifts to the responding party to articulate a legitimate, non-discriminatory reason for the allegedly discriminatory action.  If the respondent is successful, the third step shifts the burden back to the complaining party (yes, again), obligating the complainant to show evidence that the responding party’s answer is merely a pretext for discrimination.

Minnesota courts consistently adopted the burden-shifting analysis as a tool to use in indirect cases (i.e. cases in which there is no direct proof of discrimination).  But in 2009, the U.S. Supreme Court suggested an alternative approach to analyzing age discrimination cases in Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343 (2009), drawing into question Minnesota’s longstanding analytical framework.

The Burden-Shifting Question

In Gross, the U.S. Supreme Court determined that the language and intent of the Age Discrimination in Employment Act (ADEA) prevented application of the McDonnell Douglas burden-shifting analysis for age discrimination claims.  Writing for a 5-4 majority, Justice Thomas emphasized, “This Court has never held that this burden-shifting framework applies to ADEA claims,” and employed a “but-for” causal analysis for age discrimination instead.  In this more stringent test, a complaining party must prove that age was the “but-for” or “sole” cause of the employer’s action.  Under this analysis, the burden of persuasion does not shift to the employer to show that it would have taken the complained of action regardless of age, even when the complaining party has produced some evidence that age was one of the motivating factors.

Amidst Minnesota’s historical burden-shifting approach, which is based on adopting many Tile VII federal principles, a conflict arises with the U.S. Supreme Court’s clear dictation for ADEA claims.  An administrative agency like the Minneapolis Civil Rights Department is left with a Shakespearean-esque question for age discrimination cases:  To Burden Shift or Not to Burden Shift, That is the Question…

Is Zaitz the Answer?

For those of us craving more clarification on the burden-shifting conundrum, the Minnesota Court of Appeals offered a welcome decision in Zaitz v. Minneapolis Downtown Council, No. A10-1897, WL 2623416 (July 5, 2011).

In Zaitz, the complaining party filed charges against her former employer for age discrimination under the Minnesota Human Rights Act (MHRA) (among other claims).  Zaitz was an administrative assistant at the respondent-employer until her employment was terminated in 2005.  She claimed to have evidence of age discrimination in the form of two e-mails in which her former supervisor and a member of the board expressed concern that her termination could expose the organization to a lawsuit.

Relying on Courtney v. Biosound, Inc., 42 F.3d 414, 240 (7th Cir. 1994), the Minnesota Court of Appeals determined that the board’s sensitivity to potential liability when discharging an older worker was insufficient evidence of discrimination.  Zaitz’s claim also failed under the McDonnell Douglas framework because she was unable to establish a prima facie case of discrimination and could not prove that her discharge occurred under circumstances giving rise to an inference of discrimination.  The trial court dismissed all of the charges, and the Minnesota Court of Appeals affirmed.

While the Zaitz fact pattern is fairly typical for an age discrimination claim, this unpublished decision is interesting from a process perspective.  The Zaitz decision suggests that the Minnesota Court of Appeals will continue to follow McDonnell Douglas burden-shifting analysis when interpreting the Minnesota Human Rights Act (MHRA), and will not follow the Gross decision.  Similarly, it is reasonable to presume that Zaitz will also inform appellate interpretation of claims arising under the Minneapolis Civil Rights Ordinance.

For those practitioners who approached the Gross decision cautiously, this case may be validating; but the underlying question remains: Is Zaitz the Answer?  Because Zaitz is at the intermediate appellant review and issued in an unpublished format, I suggest that the final word on this issue has not been spoken.  A broader significance of Zaitz may be in its future as the Minnesota courts continue to use the McDonnell Douglas burden-shifting analysis for age discrimination under the MHRA.   One thing seems to be clear: “What’s past is prologue.”

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