How Discrimination and Retaliation Are Proved: McDonnell Douglas and the New York City Approach

When there is no direct evidence of an unlawful motive, a discrimination or retaliation case is built from circumstantial evidence. Under federal law, courts organize that evidence with a three-step framework from McDonnell Douglas Corp. v. Green: the employee's prima facie case, the employer's stated reason, and the employee's showing that the reason is a pretext.⁠^[1][2] The New York City Human Rights Law (NYCHRL) uses a different measure: the plaintiff prevails by proving that discrimination was one of the motivating factors for the decision.⁠^[5]

Why is there a framework at all?

A prima facie case is the employee's initial showing. The U.S. Supreme Court described it in 1973 as the way a Title VII plaintiff with no direct evidence may begin.⁠^[1] The framework is an order of proof. It does not change who has to persuade the judge or jury: under federal law the ultimate burden of persuading the trier of fact that the employer intentionally discriminated remains at all times with the plaintiff.⁠^[2]

What are the three steps under federal law?

Step 1: the prima facie case

In the original failure-to-hire setting, the plaintiff showed that he belonged to a racial minority, that he applied and was qualified for a job the employer was filling, that he was rejected despite his qualifications, and that the position stayed open while the employer kept seeking applicants with his qualifications.⁠^[1] The Second Circuit, the federal appeals court that covers New York, has described in more general terms what the facts alleged in a Title VII complaint must plausibly support: membership in a protected class, qualification, an adverse employment action, and at least minimal support for the proposition that the employer was motivated by discriminatory intent.⁠^[8]

Two recent U.S. Supreme Court decisions bear on this step under federal law:

• Ames (June 5, 2025). A Title VII plaintiff from a majority group does not have to show additional "background circumstances." The standard for proving disparate treatment does not vary based on whether the plaintiff belongs to a majority group.⁠^[6] The Court read Title VII as protecting "any individual" and drawing no distinction between majority-group and minority-group plaintiffs.⁠^[9]
• Muldrow (April 17, 2024). An employee challenging a discriminatory job transfer under Title VII must show some harm respecting an identifiable term or condition of employment, but does not have to show that the harm was significant.⁠^[7]

Step 2: the employer's reason

Once a prima facie case is shown under federal law, the burden shifts to the employer to articulate some legitimate, nondiscriminatory reason for its action.⁠^[2] For Title VII retaliation claims the Second Circuit describes the same step as articulating a legitimate, non-retaliatory reason.⁠^[10] The guide to common employer defenses covers what employers typically argue here.

Step 3: pretext

The employee must then be afforded a fair opportunity to show that the employer's stated reason was in fact a pretext.⁠^[2] Under federal law, a prima facie case combined with sufficient evidence that the employer's asserted justification is false may permit the fact-finder to conclude that the employer unlawfully discriminated, although the Court added that such a showing will not always be adequate to sustain a verdict.⁠^[11] In federal retaliation cases, the Second Circuit has said a plaintiff may prove causation by demonstrating weaknesses, implausibilities, inconsistencies or contradictions in the employer's stated reasons.⁠^[12]

What is the difference between "motivating factor" and "but-for" causation?

Causation is the link between the protected characteristic or activity and the employer's action. The required strength of that link depends on the statute. A "motivating factor" standard is met even when other factors also motivated the decision.⁠^[3] "But-for" causation asks whether the action would have occurred without the unlawful motive, and in the Second Circuit it does not require that the unlawful motive was the only cause.⁠^[4][12]

Claim	Layer	Causation standard
Title VII discrimination (race, color, religion, sex, national origin)	Federal	Motivating factor: a violation is established when the protected characteristic was a motivating factor, even though other factors also motivated the practice.⁠[3]
Title VII retaliation	Federal	But-for causation; the motivating-factor test does not apply.⁠[4]
ADA employment discrimination	Federal (Second Circuit)	But-for causation.⁠[13]
Section 1981 race discrimination	Federal	But-for causation; the plaintiff must plead and ultimately prove that, but for race, the loss would not have occurred.⁠[14]
FMLA retaliation for taking leave	Federal (Second Circuit)	Motivating factor.⁠[15]
NYCHRL discrimination	New York City	One of the motivating factors, even if not the sole motivating factor.⁠[5]
NYCHRL retaliation	New York City	Summary judgment for the employer is appropriate only if the plaintiff cannot show that retaliation played any part in the decision.⁠[16]

Under Title VII, a mixed-motive finding has a cost for the employee where the employer proves it would have taken the same action without the unlawful motive: the court may grant declaratory relief, injunctive relief and attorney's fees, but may not award damages or order reinstatement, hiring, promotion or back pay.⁠^[17] No direct evidence is needed to obtain a mixed-motive jury instruction under Title VII.⁠^[3]

How are retaliation claims proved?

In the Second Circuit, a Title VII retaliation plaintiff makes a prima facie case by showing participation in a protected activity, that the defendant knew of it, an adverse employment action, and a causal connection between the two. The court calls that initial burden "de minimis."⁠^[10] The same three steps follow: a presumption of retaliation arises, and the employer must then articulate a legitimate, non-retaliatory reason.⁠^[10]

A causal connection can be shown indirectly, by showing that the protected activity was followed closely by adverse treatment or through other circumstantial evidence such as different treatment of co-workers who engaged in similar conduct, or directly, through evidence of retaliatory animus.⁠^[18] Under federal law, timing alone does not defeat summary judgment at the pretext stage in the Second Circuit, though it can be combined with other evidence.⁠^[19] See timing and causation in retaliation cases.

How does New York City law depart from the federal framework?

The NYCHRL must be construed liberally for its "uniquely broad and remedial purposes," regardless of whether comparably worded federal or New York State laws have been read that way, and courts must analyze City claims separately from federal and State claims.⁠^[20][21] Several consequences follow under City law:

• Motivating factor is enough. A plaintiff should prevail under the NYCHRL by proving that unlawful discrimination was one of the motivating factors for an adverse employment decision, and need not prove that the employer's stated reason was actually false or entirely irrelevant.⁠^[5]
• Every route stays open on summary judgment. An employer seeking summary judgment in a City-law case bears the burden of showing that no jury could find it liable under any of the evidentiary routes: the McDonnell Douglas test, mixed motives, or direct or circumstantial evidence.⁠^[22]
• Pretext evidence carries weight. The First Department has said that evidence of pretext should in almost every case indicate that a summary judgment motion must be denied.⁠^[22] Bennett, the decision that set out this approach, is one of three decisions the City statute itself names as having correctly applied the liberal-construction rule.⁠^[23]
• The question is being "treated less well." For City-law claims about terms and conditions of employment, including harassment, the primary issue is whether the plaintiff has proved by a preponderance of the evidence that she was treated less well than other employees because of a protected characteristic.⁠^[24][25]
• A discriminatory motive is still needed. Under City law the plaintiff still bears the burden of showing that the conduct was caused, at least in part, by a discriminatory motive. An overbearing or obnoxious boss is not enough.⁠^[26]

The guides on summary judgment, the "treated less well" standard and City-law retaliation go deeper.

Where does New York State law stand?

In 2004, before the State amendments of 2019, the Court of Appeals described the standards for recovery under the New York State Human Rights Law (NYSHRL) as the same as the federal Title VII standards.⁠^[27] In 2019 the Legislature amended the NYSHRL to say that it must be construed liberally for its remedial purposes regardless of whether federal civil rights laws, including comparably worded ones, have been so construed. That language was signed on August 12, 2019.⁠^[28][29] The 2019 change applies to claims that accrued on or after its effective date.⁠^[30]

For State-law retaliation, the Court of Appeals stated the elements in 2004, before those amendments, as protected activity, employer awareness, an adverse employment action based on the activity, and a causal connection.⁠^[31] This page does not state a causation standard for State-law claims that accrued after the 2019 amendments, and it does not describe the State standard as matching either the federal one or the City one; that is a question to put to a lawyer.

One State-law proof scheme is written into the statute itself. Under a provision added to the NYSHRL by a law signed on December 19, 2025, which applies to employment discrimination occurring on and after its effective date, an unlawful practice in an employment discrimination case may be established by a practice's discriminatory effect even without discriminatory intent: the complainant proves the disparate impact, the employer must then prove the practice is job related and consistent with business necessity, and the complainant may still prevail by proving a less discriminatory alternative.⁠^[32][33]

Do I need a comparator?

A comparator is a co-worker outside the protected group who was treated better in similar circumstances. Comparison is one kind of circumstantial evidence. In federal retaliation cases, for example, the Second Circuit lists different treatment of fellow employees who engaged in similar conduct as one way to show a causal connection.⁠^[18] For harassment claims under the NYSHRL, the statute says an employee does not have to identify another person to whom the employee's treatment must be compared.⁠^[34] How closely a comparator has to match the plaintiff is not covered on this page.

Is the framework a pleading rule?

No, not in federal court. The U.S. Supreme Court held that an employment discrimination complaint need not contain specific facts establishing a prima facie case under McDonnell Douglas, because the prima facie case is an evidentiary standard and not a pleading requirement.⁠^[35] In the Second Circuit, a Title VII complaint must plausibly allege that the employer took adverse action and that a protected characteristic was a motivating factor in the decision.⁠^[8] A Title VII retaliation complaint must plausibly allege an adverse employment action taken because the plaintiff opposed an unlawful employment practice.⁠^[36] The timeline of an employment lawsuit shows where pleading, discovery and summary judgment fall.

What people commonly get wrong

• "Muldrow changed the harassment test." Muldrow addressed a job transfer challenged as discrimination.⁠^[7] The federal harassment test, which asks whether conduct was sufficiently severe or pervasive to alter the conditions of employment, comes from a different line of cases.⁠^[37] See the federal hostile work environment test.
• "Any unfair treatment proves discrimination." Each layer still asks for a link to a protected characteristic. Title VII does not prohibit all verbal or physical harassment in the workplace, and the NYCHRL is not a general civility code.⁠^[38][26] The guide to unfair versus illegal treatment explains the line.

For what kinds of proof are used and how to keep them, see documenting workplace harassment. For an overview of how the federal, State and City laws fit together, see the three layers of workplace law.