McDonnell Douglas: The End Is Near? by Andrew H. Friedman

California Labor & Employment Law Review Publishes Cover Article By Andrew H. Friedman

September 1, 2025 – Helmer Friedman LLP is pleased to announce that the California Labor & Employment Law Review has just published Andrew H. Friedman’s article – MCDONNELL DOUGLAS: THE END IS NEAR? – as the cover article for its September 2025 issue. Sadly, the McDonnell Douglas burden-shifting test, which was originally established to help plaintiff employees prove discrimination, has increasingly become an employer’s best friend enabling them to obtain summary judgment in so many clearly meritorious cases that even the conservative Justices believe that the time has come to end or, at least, curtail its use at summary judgment.This article explores the increasingly ostentatious charge by a duo of uber conservative Justices – Clarence Thomas and Neil M. Gorsuch – to reverse or dramatically curtail the use of the tripartite burden-shifting test first announced by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), for the most unlikely of reasons. Justices Thomas and Gorsuch contend that the McDonnell Douglas test is too employer-friendly because it not only “requires a plaintiff to prove too much at summary judgment” but also that it “fails to encompass the various ways in which a plaintiff could prove his claim.” In their dissent in Hittle v. City of Stockton, California, 145 S.Ct. 759, 759-764 (2025) (J. Thomas and J. Gorsuch, dissenting) and their concurrence in Ames v. Ohio Department of Youth Services, 145 S.Ct. 1540, 1548-1555 (2025)(J. Thomas and J. Gorsuch, concurring), Justices Thomas and Gorsuch also criticize the use of McDonnell Douglas on motions for summary judgment for a whole host of additional reasons:

  • McDonnell Douglas is not grounded in the text of Title VII or any other source of law – rather, it is a judicially manufactured doctrine and, as such, generates complexity and confusion which cause erroneous results.
  • McDonnell Douglas is incompatible with the summary-judgment standard set forth in Federal Rule of Civil Procedure 56.
  • McDonnell Douglas requires courts to draw and maintain artificial distinctions between direct and circumstantial evidence.

Commenting on the publication of his article, Mr. Friedman said: “Sadly, the McDonnell Douglas burden-shifting test, which was originally established to help plaintiff employees prove discrimination, has increasingly become an employer’s best friend enabling them to obtain summary judgment in so many clearly meritorious cases that even the conservative Justices believe that the time has come to end or, at least, curtail its use at summary judgment.”

If you enjoy Mr. Friedman’s article and you are not currently a member of the Labor and Employment Law Section of the California Lawyer’s Association, you should consider joining at https://calawyers.org/join-the-labor-and-employment-law-section/. As a member of the Labor and Employment Law Section, you will receive every issue of the California Labor and Employment Law Review – a leading resource for staying up-to-date on all the latest developments in Labor and Employment Law. You will also receive member only discounts not only to the Section’s live and ondemand webinars but also for the Section’s flagship programs including:

  • New Employment Practitioner Conference
  • Annual Public Sector Conference
  • Annual Labor and Employment Law Conference
  • Annual Advanced Wage and Hour Conference
  • Annual Advanced Mediation Conference
2025-09-02T09:37:30-08:00September 1st, 2025|Andrew Friedman, employment law publications|Comments Off on McDonnell Douglas: The End Is Near? by Andrew H. Friedman

Superior Court Success: Compel Arbitration Defeated

Courtney Abrams, Erin Kelly, Andrew Friedman, Superior Court Victory defeating compel arbitration.

Helmer Friedman LLP is thrilled to extend our heartfelt congratulations to our co-counsel, Erin Kelly, for her remarkable oral argument before the California Court of Appeal, Second Appellate District. Together, we achieved a significant victory at the Superior Court level, successfully defeating an employer’s motion to compel arbitration—a decision the employer has since appealed. Erin, alongside our talented team members, Courtney Abrams and Andrew H. Friedman, diligently prepared our opposition to this appeal, and we are feeling optimistic that the Second Appellate District will uphold the Superior Court’s ruling. If our hopes materialize, it will mark our fifth consecutive triumph in overcoming motions to compel arbitration, demonstrating our commitment to justice.

We are also excited by the momentum surrounding the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, which empowers employees to opt out of enforced arbitration in cases of harassment and assault. We strongly encourage Congress to support the Forced Arbitration Injustice Repeal Act. This critical legislation would prevent predispute arbitration agreements from being valid or enforceable in employment, consumer, antitrust, or civil rights disputes, paving the way for fairer outcomes. Let’s continue to advocate for justice together!

2025-06-25T09:01:15-08:00June 25th, 2025|Arbitration Agreement, Erin Kelly, Front Page News|Comments Off on Superior Court Success: Compel Arbitration Defeated

Andrew H. Friedman Named to Elite List of the Top 100 Lawyers in Southern California

March 1, 2025 – Los Angeles – Helmer Friedman LLP is very pleased to announce that, out of the more than 100,000 attorneys in the Southern California area, the lawyer rating service Super Lawyers has named founding partner Andrew H. Friedman as a 2025 Top 100 Super Lawyer in Southern California. Commenting about Mr. Friedman’s selection to the Southern California Super Lawyers Top 100, Gregory D. Helmer said, “We couldn’t be prouder of this honor for our partner. Andrew has been named to the Top 100 since 2020 and his recognition is well-deserved.”

We couldn’t be prouder of this honor for our partner. Andrew has been named to the Top 100 since 2020 and his recognition is well-deserved.

Each year, Super Lawyers recognizes the Top 100 attorneys in Southern California via a patented multiphase selection process involving peer nomination, independent research and peer evaluation. Southern California lawyers who receive the highest point totals during this selection process are further recognized in Southern California Super Lawyers Top Lists.

“Recognition as a Top 100 Super Lawyer for 2025 is a huge honor,” Andrew H. Friedman said, “and I am quite thankful for the recognition and for the ability to represents employees and consumers who have been treated illegally by large corporate and governmental entities.”

Representing employees (both individual employees and class and collective actions comprised of multiple individuals), Andrew’s cases involve every variety of employment claim from harassment and discrimination to retaliation and whistle-blowing actions to wage and hour matters to religious and disability accommodation cases. Mr. Friedman not only litigates these cases but he has prevailed at trial in sexual harassment/retaliation and fraud and breach of contract cases including, with Tony Lewis of The Lewis Law Firm, a $4.1 Million jury verdict in the Los Angeles Superior Court.

Mr. Friedman has also prevailed in precedent-setting appeals, including serving as Counsel of Record in Lightfoot v. Cendant Mortgage Corp. et. al. (Case No. 10-56068) where he successfully convinced the U. S. Supreme Court to grant the petition for certiorari that he filed on behalf of his clients. In January 2017, the Supreme Court, in a unanimous decision authored by Justice Sotomayor, reversed the Ninth Circuit and ruled in favor of Mr. Friedman’s clients.

Recognition as a Top 100 Super Lawyer for 2025 is a huge honor,” Andrew H. Friedman said, “and I am quite thankful for the recognition and for the ability to represents employees and consumers who have been treated illegally by large corporate and governmental entities.

Mr. Friedman has received the highest possible rating from Martindale-Hubble, indicating that he is ranked at the highest level of professional excellence with “very high to preeminent legal ability” and “very high” ethical standards as established by confidential opinions from members of the Bar.

For multiple years, Chambers USA, the Nation’s leading legal data and analytics provider, has awarded Mr. Friedman with its highest possible rating (“Band 1”) for Labor & Employment – see https://chambers.com/lawyer/andrew-h-friedman-usa-5:25940936. According to a review published in Chambers USA, “Andrew Friedman of Helmer Friedman is recognized among peers for his work representing both individuals and classes in a variety of matters, ranging from harassment to wage and hour suits. ‘He’s an excellent plaintiff lawyer who offers a really good perspective.’”

Mr. Friedman is also widely acclaimed for writing the definitive employment law treatise – Litigating Employment Discrimination Cases (James Publishing – 2005 – 2025), https://jamespublishing.com/product/litigating-employment-discrimination-cases/ – which is widely used by practitioners from both the plaintiff and management sides of the employment law bar.

2025-03-12T07:37:11-08:00February 28th, 2025|employment law|Comments Off on Andrew H. Friedman Named to Elite List of the Top 100 Lawyers in Southern California

Super Lawyers Names Gregory D. Helmer and Andrew H. Friedman as 2025 Super Lawyers

Andrew Friedman, Greg Helmer named Super Lawyer Top 100 2025.February 20, 2025 – Los Angeles – Helmer Friedman LLP is very pleased to announce that the lawyer rating service Super Lawyers has named founding partners Gregory D. Helmer and Andrew H. Friedman as 2025 Super Lawyers. Using its patented multiphase selection process (U.S. Pat. No. 8,412,564), Super Lawyers annually creates a comprehensive and diverse listing of the top 5% of attorneys in various practice areas, such as employment law. “It is a tremendous honor to have been once again named by Super Lawyers to its list of the top 5% of all of the labor and employment law attorneys in Southern California,” Gregory D. Helmer commented, “Super Lawyers has been recognizing us since 2006 and we couldn’t be prouder of this accomplishment.” “We are also very proud that two of our amazing co-counsel – Charles T. Mathews and Courtney Abrams – have also been recognized as 2025 Super Lawyers,” Andrew H. Friedman added.

2025-03-01T11:55:59-08:00February 25th, 2025|employment law, Front Page News|Comments Off on Super Lawyers Names Gregory D. Helmer and Andrew H. Friedman as 2025 Super Lawyers

Consumer Attorneys Association for Southern California Publishes Article By Andrew H. Friedman

Andrew Friedman and Erin Kelly article published February 2025 Advocate Magazine.

February 1, 2025 – Helmer Friedman LLP congratulates partner Andrew H. Friedman and former Helmer Friedman LLP attorney Erin Kelly on the publication of their article – “The best and worst employment cases of 2024 – A BRIEF OVERVIEW OF THE CASES THAT SHAPED THE YEAR IN EMPLOYMENT LAW (WITH A BIT OF COLOR COMMENTARY) – in the Advocate Journal (a publication of the Consumer Attorneys Association for Southern California – February 2025).  Click here to read the article.

2025-02-11T11:08:52-08:00February 1st, 2025|Andrew Friedman, employment law publications, Erin Kelly|Comments Off on Consumer Attorneys Association for Southern California Publishes Article By Andrew H. Friedman

California Lawyers Association Publishes Law Review Article Co-Authored by Andrew H. Friedman

Andrew H. Friedman, Ramit Mizrahi, Anthony J. Oncidi Author Article For the California Labor & Employment Law Review

January 1, 2025Andrew H. Friedman, Ramit Mizrahi (an employment law mediator with The Mizrahi Law Firm), and Anthony “Tony” J. Oncidi (a partner in and Co-Chair of the Labor and Employment Department of Proskauer Rose LLP – a defense-side employment law firm) have once again co-authored an article – THE TOP EMPLOYMENT CASES OF 2024 – for the California Lawyers Association and the California Labor & Employment Law Review. The article can be viewed here.

2025-08-21T10:17:28-08:00December 30th, 2024|Andrew Friedman, employment law publications|Comments Off on California Lawyers Association Publishes Law Review Article Co-Authored by Andrew H. Friedman

Southern California Best Lawyers 2025

Gregory D. Helmer and Andrew H. Friedman Recognized by Best Lawyers

“It is a tremendous honor to have been once again selected to the Best Lawyers’ list of top labor and employment law attorneys in Southern California,” Gregory D. Helmer

November 1, 2024 – Best Lawyers has selected Gregory D. Helmer and Andrew H. Friedman of Helmer Friedman LLP for inclusion in its ranking of the top labor and employment law attorneys in Southern California for 2025. “It is a tremendous honor to have been once again selected to the Best Lawyers’ list of top labor and employment law attorneys in Southern California,” Gregory D. Helmer commented.

For over 40 years, Best Lawyers has been widely regarded by lawyers and the public as the most reliable measure of legal integrity and distinction in the United States. Being recognized by Best Lawyers is a true testament to the excellence of one’s practice.

Southern California Best Lawyers 2025 - Labor and Employment Law.
2024-10-30T06:45:57-08:00October 30th, 2024|employment law|Comments Off on Southern California Best Lawyers 2025

Court of Appeal Rules Against Anthem/Elevance Health Attempt to Force Arbitration

Helmer Friedman LLP Defeats Anthem/Elevance Health’s Effort to Force Employee to Arbitrate

October 25, 2023 (Los Angeles, CA) – In a significant legal development, the California Court of Appeal has determined that Anthem Health, now operating as Elevance Health, cannot compel arbitration in the case involving long-term employee Mr. Gregory Antoniono. This ruling (Case B327595) from the Second Appellate District, Division 3, paves the way for the proceedings to continue in the Los Angeles County Superior Court before a judge and jury instead of an arbitrator.

“After litigating this issue for the better part of two years, we are pleased that the Court of Appeal reached what we believe to be the correct decision. When an individual is forced to arbitrate, they are giving up their fundamental constitutional right to a jury trial. As with all constitutional rights, we should analyze any waiver with an extremely high level of scrutiny.”

Following nearly two years of legal proceedings, the Los Angeles County Superior Court rejected Anthem/Elevance’s motion to enforce arbitration in March 2023 (Case No. 22STCV26362). The court ruled that the company failed to demonstrate that Mr. Antoniono agreed to arbitrate his claims, as he had not been provided the opportunity to review the arbitration policy terms when he signed his offer letter. Furthermore, the company’s intranet, where the policy was purportedly accessible, explicitly stated that the policies were not intended to form a legally binding contract.

The Court of Appeal upheld the court’s decision, emphasizing that Anthem/Elevance did not meet the “minimum” requirements for establishing an implied agreement to arbitrate. According to the Court, employers must “clearly communicate to the employee both that assenting to arbitration is a condition of employment and what the terms of the employer’s policy are.”

Anthem/Elevance’s argument that Mr. Antoniono implicitly agreed by signing an offer letter referencing the arbitration policy was dismissed due to the policy’s lack of attachment or accessible link. The Court highlighted that the arbitration policy was buried among numerous other non-contractual policies on the intranet.

Commenting on the decision, Gregory D. Helmer of Helmer Friedman LLP, representing Mr. Antoniono, remarked, “After litigating this issue for the better part of two years, we are pleased that the Court of Appeal reached what we believe to be the correct decision. When an individual is forced to arbitrate, they are giving up their fundamental constitutional right to a jury trial. As with all constitutional rights, we should analyze any waiver with an extremely high level of scrutiny.”

About Helmer Friedman LLP

Helmer Friedman LLP advocates for employees’ rights in matters involving discrimination, harassment, and wrongful termination and provides aggressive and innovative representation to safeguard clients’ rights.

Contact Information

Gregory D. Helmer
Helmer Friedman LLP
Phone: 310-396-7714
Email: ghelmer@helmerfriedman.com

2024-10-26T04:43:30-08:00October 24th, 2024|Case Update, employment law, Front Page News, Greg Helmer|Comments Off on Court of Appeal Rules Against Anthem/Elevance Health Attempt to Force Arbitration

Extended Review of New Employment Law Cases

Andrew H. Friedman And Tony Oncidi To Present An Extended Review Of New Employment Cases And Law For Pincus Professional Education

 

Mandatory Continuing Legal Education program on Harassment taught by Andrew H. Friedman.

January 2024 – On January 16, 2024, Pincus Professional Education will be presenting an extended and more in-depth version of the annual employment law review that Andrew H. Friedman and Tony Oncidi perform for many state and local bar associations up-and-down the California coast. More information about the presentation that Mr. Friedman and Mr. Oncidi will be providing for Pincus Professional Education can be accessed at https://new.pincusproed.com/product/2nd-annual-employment-law-year-in-review-2023-new-cases-and-laws-ca-federal-recorded-package/

2025-07-30T10:29:47-08:00January 16th, 2024|Andrew Friedman, employment law, speaking engagements|Comments Off on Extended Review of New Employment Law Cases

Labor & Employment Law Review Article Co-Authored by Andrew Friedman

Andrew H. Friedman, Ramit Mizrahi, Anthony J. Oncidi Author Article For the California Labor & Employment Law Review.

Andrew H. Friedman, Ramit Mizrahi, Anthony J. Oncidi Author Article For the California Labor & Employment Law Review

January 2024 – Andrew H. Friedman, Ramit Mizrahi (an employment law mediator with The Mizrahi Law Firm), and Anthony “Tony” J. Oncidi (a partner in and Co-Chair of the Labor and Employment Department of Proskauer Rose LLP – a defense-side employment law firm) have once again co-authored an article – THE TOP EMPLOYMENT CASES OF 2023 – for the California Lawyers Association and the California Labor & Employment Law Review. The article can be viewed here.

 

2025-07-30T10:40:10-08:00January 16th, 2024|Andrew Friedman, employment law, Front Page News, law review articles|Comments Off on Labor & Employment Law Review Article Co-Authored by Andrew Friedman
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