Should jury verdict forms in discrimination cases include the McDonnell Douglas factors?

Jury trials are often won or lost based on the instructions and verdict forms the court provides the jury.

Jury instructions outline the legal standards that the jury must use to decide the case. Verdict forms allow the jury to record its decisions on the issues in the case and typically include specific questions that the jury must answer reflecting their findings on claim.

In Craddock v. FedEx Corp. Servs.Craddock v. FedEx Corp. Servs., the plaintiff — a Black woman fired after an altercation at work — complained on appeal about an alleged inconsistency in the jury's verdict.

The verdict form asked the following two questions on Craddock's race discrimination claim: "Did Plaintiff prove by a preponderance of the evidence that the reason advanced by Defendant for her termination was a pretext for race discrimination?" -and- "Did Plaintiff prove by a preponderance of the evidence that she was the victim of intentional race discrimination when she was terminated?"

The jury answered "yes" to the former but "no" to the latter, thereby granting FedEx a trial victory. Craddock claimed those answers were inconsistent and provided a basis to overturn the jury's verdict on appeal. The 6th Circuit noted that the inclusion of McDonnell Douglas factors such as "pretext" on a verdict form does risk confusing the jury, but that such confusion did not exist in this case. Even though the two quoted questions "split the 'ultimate question' of intentional discrimination into two distinct inquiries that unnecessarily overlap," the court wrote, "the record does not indicate … that the language on the verdict form played a major role in their difficulty in deciding the case."

This a fascinating case to us employment law nerds. The McDonnell Douglas factors are useful to a court in deciding whether there is an issue to try to a jury or if a case should be dismissed on summary judgment. They are much less useful to a jury because of the risk of confusion they could cause on the ultimate issue to be decided — whether the employer intentionally discriminated. Yet, despite that confusion, the 6th Circuit let the verdict stand. I'm not so sure that was the correct result here.