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

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

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

Defeating Arbitration Clauses Article by Erin Kelly Published in Advocate Magazine

Advocate Magazine publishes article authored by Erin Kelly of Helmer Friedman LLP.

Big news! We’re thrilled to share that one of our very own attorneys, Erin Kelly, has been featured in the latest edition of Advocate Magazine! The article, titled “Discovery Aimed At Defeating An Arbitration Clause in Employment Cases,” is a fascinating read that highlights the importance of pre-hearing discovery in keeping a case in court. Erin offers some great tips and real-life examples on how to uncover evidence that can defeat a motion to compel arbitration.

Advocate Magazine is the largest magazine for plaintiffs’ trial attorneys in the United States and is owned by the Consumer Attorneys Association of Los Angeles (CAALA). This is Erin’s second article to be published by the magazine – she’s really making waves in the industry! We’re so proud of her achievement and can’t wait to see what she does next.

 

2023-10-12T10:08:44-08:00October 12th, 2023|Arbitration Agreement, Erin Kelly, Labor & Employment Law|Comments Off on Defeating Arbitration Clauses Article by Erin Kelly Published in Advocate Magazine

Workplace Investigators Law Review Article

Helmer Friedman Attorneys Author Front Page Law Review Article About Workplace Investigators

March 1, 2023 – Helmer Friedman LLP is very pleased to congratulate Partner Helmer Friedman LLP Andrew H. Friedman Leader Discrimination, Harassment, Retaliation Employment Law.Andrew H. Friedman and Courtney Abrams on the inclusion of their article Attorney Workplace Investigations: Neither Impartial Nor Independent in the most recent edition of the California Labor & Employment Law Review on the review’s front cover.

2024-09-18T12:10:34-08:00March 7th, 2023|Andrew Friedman, Front Page News|Comments Off on Workplace Investigators Law Review Article

Erin Kelly & Andrew H. Friedman Author Article For The Advocate Magazine

New Employment Laws of 2023, Advocate Magazine

February 1, 2023 – Helmer Friedman LLP is very pleased to announce that the February 2023 Advocate Magazine, a journal of the Consumer Attorneys Association of Los Angeles, contains an article written by Helmer Friedman LLP attorneys Erin Kelly and Andrew H. Friedman2023’s new employment laws (with a bit of color commentary).  The article can be reviewed here.

2024-09-18T12:13:31-08:00February 8th, 2023|Andrew Friedman, employment law publications, Erin Kelly|Comments Off on Erin Kelly & Andrew H. Friedman Author Article For The Advocate Magazine

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

January 2023 – 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 CASES OF 2022 – for the California Lawyers Association and the California Labor & Employment Law Review. The article can be viewed here.

2024-09-18T12:13:47-08:00January 9th, 2023|Andrew Friedman, employment law publications|Comments Off on Andrew H. Friedman, Ramit Mizrahi, Anthony J. Oncidi Author Article For the California Labor & Employment Law Review

Andrew H. Friedman and EEOC Attorney Taylor Markey Co-Author Article For The Advocate Magazine

Article written by Andrew Friedman and Taylor Markey.

May 1, 2022 – Helmer Friedman LLP is very pleased to announce that the May 2022 Advocate Magazine, a journal of the Consumer Attorneys Association of Los Angeles, contains an article written by Helmer Friedman LLP attorney Andrew H. Friedman and former Helmer Friedman LLP attorney Taylor Markey, who is now an attorney with the Equal Employment Opportunity Commission – The best and worst employment developments of 2021. The article can be viewed here.

2024-09-18T12:14:07-08:00April 13th, 2022|Andrew Friedman, employment law publications, Taylor Markey|Comments Off on Andrew H. Friedman and EEOC Attorney Taylor Markey Co-Author Article For The Advocate Magazine
Go to Top