In March, the U.S. Supreme Court majority declined to review a decision affirming summary judgment for an employer in a discrimination case. Justice Clarence Thomas, joined by Justice Neil Gorsuch, dissented, noting that he “would have taken this opportunity to revisit McDonnell Douglas to clarify what role – if any – it ought to play in Title VII litigation.” He then proceeded to do just that.
The McDonnell Douglas standard
In McDonnell Douglas Corporation v. Green, a failure-to-hire case decided in 1973, the Supreme Court developed a way to evaluate the validity of discrimination cases that are based on circumstantial, rather than direct, evidence. (An example of direct evidence would be a statement by a supervisor that he flat-out did not want to hire anyone of a certain race. An example of circumstantial evidence would be refusal to hire a qualified member of a certain race while offering the job to a less-qualified member of a different race.)
The McDonnell Douglas standard has variations depending on the type of employment action being challenged, but it essentially requires a plaintiff in a discrimination case to initially show (1) that he or she is a member of a protected group; (2) that he or she was meeting the employer’s legitimate expectations (if a current employee) or was qualified for a position (in a failure to hire or promote case); (3) that he or she was subjected to some sort of adverse employment action, such as termination, refusal to hire, or denial of a promotion; and (4) that similarly situated individuals outside the protected category were treated more favorably.
If the plaintiff succeeds, the burden then shifts to the employer to articulate some legitimate, nondiscriminatory reason for the employment action taken. If the employer meets this burden, then the plaintiff must show that the employer’s stated reason is insufficient, and that the true motive was a discriminatory one. An example of a showing of “pretext” would be where the employer alleges that it terminated a plaintiff for violating its policy against moonlighting – a perfectly legitimate policy – but the plaintiff shows that numerous employees outside the protected group held second jobs with the employer’s knowledge and were not terminated.
Justice Thomas’s concurrence in Ames
As summarized by my colleague Colin Finnegan here, last week the Supreme Court decided Ames v. Ohio Dept. of Youth Services, unanimously holding that the “background circumstances rule” used by the U.S. Court of Appeals for the Sixth Circuit “was not consistent with Title VII’s text or our case law construing the statute.” Justice Ketanji Brown Jackson, who wrote the opinion, specifically noted that “[f]or purposes of this case, we assume without deciding that the McDonnell Douglas framework applies at the summary judgment stage of litigation.”
Justice Thomas wrote a concurring opinion (again joined by Justice Gorsuch), and condemned “judge-made doctrines” like the “background circumstances” rule and the McDonnell-Douglas three-step framework used by the district court in deciding the case:
I join the Court’s opinion in full. I write separately to highlight the problems that arise when judges create atextual legal rules and frameworks. Judge-made doctrines have a tendency to distort the underlying statutory text, impose unnecessary burdens on litigants, and cause confusion for courts. The “background circumstances” rule — correctly rejected by the Court today — is one example of this phenomenon. And, the decision below involves another example: The Sixth Circuit analyzed Ames’s Title VII claim under the three-step framework developed by this Court in McDonnell Douglas Corp. v. Green, 411 U. S. 792 (1973). As with the “background circumstances” rule, the McDonnell Douglas framework lacks any basis in the text of Title VII and has proved difficult for courts to apply. In a case where the parties ask us to do so, I would be willing to consider whether the McDonnell Douglas framework is a workable and useful evidentiary tool.
Part I of Justice Thomas’ concurrence discusses the “background circumstances” rule, latching onto the majority’s holding that the “background circumstances” rule “lacks any basis in the text of Title VII,” and adding that it (1) places a heightened burden on Title VII plaintiffs, (2) is a product of improper judicial lawmaking, noting that the district court cited only its mistaken understanding of the McDonnell Douglas framework, and (3) highlights “how judge made doctrines can be difficult for courts to apply, there being no principled way in which to ground their analysis because of the lack of underlying legal authority.”
Part II of the Ames concurrence focuses on McDonnell Douglas. As he did in his March dissenting opinion, Justice Thomas noted that “the judge-made McDonnell Douglas framework has no basis in the text of Title VII,” and that “[i]n an appropriate case, this Court should consider whether the McDonnell Douglas framework is an appropriate tool to evaluate Title VII claims at summary judgment.” He noted that courts have already limited the application of McDonnell Douglas: (1) it does not apply when the plaintiff relies on direct evidence to prove his claim; (2) it does not apply at the pleading stage and in deciding post-trial motions; and (3) the Court has strongly suggested that it should not be referenced in jury instructions because it is too confusing.
Potential significance of Justice Thomas’s position on McDonnell Douglas
Justice Thomas is the most prolific writer on the Supreme Court, having been the author of almost 450 opinions, including dissents and concurrences. It is, therefore, not unusual for him to state that the Court should revisit established precedents he views as having been wrongfully decided. Unlike majority decisions, concurring and dissenting opinions are not binding precedent. But they can be persuasive and provide arguments to be used by future litigants attempting to support their own legal arguments. Justice Thomas makes it clear in his Ames concurrence that this is indeed his intent:
This case did not present the question whether the McDonnell Douglas framework is an appropriate tool for evaluating Title VII claims at summary judgment. In a case where that issue is squarely before us, I would consider whether the framework should be used for that purpose.
In the meantime, litigants and lower courts are free to proceed without the McDonnell Douglas framework. This Court has never required anyone to use it. And, district courts are well equipped to resolve summary judgment motions without it. Every day—and in almost every context except the Title VII context—district courts across the country resolve summary judgment motions by applying the straightforward text of Rule 56. In my view, it might behoove courts and litigants to take that same approach in Title VII cases.
Especially relevant to his position on McDonnell Douglas, from 1982 to 1990, Justice Thomas was head of the U.S. Equal Employment Opportunity Commission, which enforces most federal employment discrimination laws. This history gives his views on the proper interpretation of the antidiscrimination laws particular weight.
As noted by Judge Thomas, the Supreme Court has never required the use of McDonnell Douglas in discrimination cases, but treated it as one way to evaluate circumstantial evidence. It remains to be seen whether any of his colleagues besides Justice Gorsuch will agree with him that the standard should be done away with.
It is also unclear whether the demise of McDonnell Douglas would benefit or harm employers, or would leave their prospects in defending discrimination cases essentially unchanged. In a recent decision from the U.S. Court of Appeals for the Eleventh Circuit (cited by Justice Thomas in his Ames concurrence), the court affirmed summary judgment for the employer under both the McDonnell Douglas standard and an alternative “convincing mosaic” standard. (The plaintiff alleged that she was discharged in retaliation for her complaints about race discrimination, but the employer’s evidence showed that the plaintiff was discharged because she had been credibly accused of bullying and other misconduct.)
