A recent Ninth Circuit decision, Lui v. DeJoy, sheds important light on the oft-confusing application of the McDonnell Douglas burden-shifting framework in Title VII discrimination cases. In a significant clarification, the court reiterated that an employee can satisfy the fourth element of the prima facie case under McDonnell Douglas simply by showing that they were replaced by someone outside their protected class—dispelling the notion that they must also demonstrate that the replacement was "similarly situated."

It is important to note that while the Ninth Circuit refers to this as the "fourth element of McDonnell Douglas," this terminology can be misleading. The element in question is actually the fourth element of the prima facie case, which is itself only the first of three steps in the McDonnell Douglas burden-shifting analysis. This distinction is crucial to understanding the framework correctly.

Background of the Case

Dawn Lui, a Chinese-American woman and longtime USPS employee, was removed from her position as Postmaster in Shelton, Washington, and demoted to a lower-paid Postmaster role in Roy, Washington. She was replaced by a white male with less experience. Lui alleged that she was subjected to discrimination based on race, sex, and national origin and filed suit under Title VII. The district court granted summary judgment for USPS, concluding that Lui failed to establish a prima facie case under McDonnell Douglas because she had not shown that a "similarly situated" individual outside her protected class was treated more favorably.
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The Ninth Circuit reversed the district court’s ruling on this issue, criticizing the lower court’s reliance on an improperly truncated version of the McDonnell Douglas test.

Clarifying the Fourth Element of the Prima Facie Case in McDonnell Douglas

The McDonnell Douglas framework, established by the U.S. Supreme Court, is a three-part test used to determine whether an employer engaged in unlawful discrimination:

1. The plaintiff must first establish a prima facie case of discrimination.
2. The burden then shifts to the employer to articulate a legitimate, nondiscriminatory reason for the adverse employment action.
3. If the employer does so, the burden shifts back to the plaintiff to demonstrate that the employer’s stated reason is a pretext for discrimination.

​The prima facie case itself consists of four elements:

1. The employee belongs to a protected class.
2. The employee was qualified for the position.
3. The employee suffered an adverse employment action.
4. The position remained open, was filled by someone outside the protected class, or "similarly situated" individuals outside the protected class were treated more favorably.

​The district court, in granting summary judgment, relied on cases that required a plaintiff to show "similarly situated" employees were treated more favorably, ignoring precedent that also allows a plaintiff to meet the fourth element simply by demonstrating that their position was filled by someone outside their protected class.

The Ninth Circuit’s Key Holdings

The Ninth Circuit emphasized that the Supreme Court and previous Ninth Circuit cases have long recognized that an employee meets the fourth element of the prima facie case by showing either that they were replaced by someone outside their protected class or that similarly situated individuals outside their protected class were treated more favorably.

The court clarified that the "similarly situated" requirement is an alternative means of proving discrimination, not an additional hurdle for employees who can already show that they were replaced by someone outside their protected class. This distinction is important, as the "similarly situated" analysis often presents unnecessary barriers for plaintiffs due to subjective employer practices and differing job responsibilities among employees.

Implications for Employees and Employers

The Ninth Circuit’s decision provides much-needed clarity and ensures that employees are not unfairly burdened by an overly restrictive interpretation of McDonnell Douglas. This ruling confirms:
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• Employees who are replaced by someone outside their protected class have a viable claim under Title VII without needing to prove differential treatment of "similarly situated" colleagues.
• The "similarly situated" analysis remains an alternative means of satisfying the fourth element, but it is not a universal requirement.
• For employment attorneys handling discrimination cases, this ruling strengthens arguments that a replacement by someone outside the protected class alone can establish a prima facie case, making it more difficult for employers to win summary judgment.

If you believe you have been subjected to discrimination in the workplace, this case highlights the importance of consulting with an experienced employment attorney to assess your claims and protect your rights under Title VII.

At NorCal Advocates, we understand that seeking help for alcohol or drug addiction is a deeply personal and often difficult decision. Many individuals struggling with substance use worry about how entering treatment will impact their job, leading them to delay or avoid getting the help they need. If this sounds like you, know that California and Federal law provides certain protections to help you seek the care you need while maintaining your employment.

Legal Protections for Employees Seeking Treatment

California Labor Code § 1025

Under California Labor Code § 1025, private employers with 25 or more employees are legally required to provide reasonable accommodations for employees who voluntarily seek to enter and participate in an alcohol or drug rehabilitation program. This means that, in most cases, your employer must allow you to take a leave of absence or modify your schedule to receive treatment—so long as it does not create an undue hardship on the business.
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However, while the law protects your right to seek treatment, it explicitly does not shield employees from termination if they are unable to perform their job duties due to current alcohol or drug use. If an employer can demonstrate that your substance use is negatively impacting your performance, creating safety risks, or violating workplace policies, they may have grounds for termination.

Related Laws Providing Additional Protections

Even if your employer has fewer than 25 employees, you may still be entitled to time off for substance abuse treatment under various other laws including the California Fair Employment and Housing Act (FEHA), the Americans with Disabilities Act (ADA), the California Family Rights Act (CFRA), and the Family and Medical Leave Act (FMLA). While these laws generally do not protect employees who are disciplined or terminated because of misconduct or other issues arising from active addiction, those seeking treatment may be entitled to time off provided certain conditions are met.

Health Coverage for Alcohol and Drug Treatment

Financial concerns should not stand in the way of getting help. California Health & Safety Code § 1367.2 mandates that group health insurance plans covering hospital, medical, or surgical expenses must also provide coverage for the treatment of alcoholism. While coverage details vary by plan, many policies include inpatient and outpatient treatment services. If you’re considering treatment, check with your health insurer to understand what services are covered and what costs you may be responsible for.

Workplace Rules and Employer Rights

While California law encourages recovery, it also allows employers to enforce workplace rules related to substance use. This means that:

• Employers may prohibit alcohol and drug use during work hours and on company property.
• Employees currently under the influence at work may still be subject to termination.
• While past substance addiction may qualify as a protected disability under FEHA and ADA, current substance use that impairs job performance does not provide the same level of protection.

Confidentiality Protections

Your employer must make reasonable efforts to keep private the fact that you have enrolled in an alcohol or drug rehabilitation program. Under California Labor Code § 1026, employers cannot disclose an employee’s participation in such a program. Additionally, the Health Insurance Portability and Accountability Act (HIPAA) prohibits employers from disclosing protected health information related to leaves of absence for alcohol or drug rehabilitation programs.

Will You Be Paid While on Leave?

Employers are not required to provide paid time off for employees attending an alcohol or drug treatment program. However, in some cases employees may:

• Use accrued sick leave to offset lost wages (California Labor Code § 1027).
• Apply for State Disability Insurance (SDI) benefits, provided that their treatment was not court-ordered as an alternative to serving jail time.

Taking the First Step

If you are struggling with alcohol or drug addiction and worried about your job, here are some steps to take:

• Review Your Employee Handbook & Company Policies – Understand your company’s stance on medical leave, substance use policies, and accommodations.
• Consult Your Health Insurance Provider – Verify coverage for treatment services and determine available options.
• Consider a Confidential Consultation with an Attorney – If you have questions about treatment or believe your employer is unfairly denying your right to seek treatment, legal guidance can help protect your job and your rights.
• Speak with Your Employer (When Ready) – If you decide to enter treatment, it may help to have an open conversation with HR or your supervisor to discuss potential accommodations. But before doing so, it’s best to first talk with an attorney to understand your rights and determine what details are appropriate or necessary to disclose.

You Are Not Alone

Substance addiction is a medical condition, not a personal failure. Seeking help is a courageous step toward recovery, and California and Federal law recognizes the importance of treatment by providing employees with legal protections. If you have questions about how to balance work and recovery, NorCal Advocates is here to help. Contact us today for a free confidential consultation.

On September 15, 2022, Jennifer gave notice to U-Haul that she would be vacating her unit by the end of the month. But just a week later, U-Haul emptied the unit, threw away her possessions, and allowed its employees to take whatever they liked. The justification? An absurd claim that Jennifer had "abandoned" the unit.
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U-Haul, of course, denied that any items were actually stolen by its employees.  But this defense rang “hollow” in the face of conveniently missing evidence and conflicting and unbelievable employee testimony.  ​