A recent US Supreme Court concurring opinion signals the potential for a seismic upheaval for employment litigators in Ohio and throughout the country, condemning a judicially-created mechanism that has long been used to artificially throw out employment civil rights claims on summary judgment.
The Ames Decision
As many employment practitioners know, the Court’s recent decision in Ames v. Ohio Dep’t of Youth Servs., 606 U.S. 303 (2025), issued on June 5, discussed how to apply the “McDonnell Douglas burden-shifting framework.” This framework arose from an appeal of a bench trial to the US Supreme Court in the 1970s, and has since been applied to essentially all “indirect evidence” employment claims — that is, claims where the employee suspects that discrimination occurred, but the employer did not make any admissible statements that openly admit to discriminating against that employee. In such cases, McDonnell Douglas has provided an analytical framework to evaluate whether a plaintiff can prove, through circumstantial evidence, that discrimination occurred.
Of course, most employers are savvy enough to avoid admitting that they are illegally discriminating against employees, so circumstantial-evidence cases are the predominant style of employment discrimination claims. As such, McDonnell Douglas is “the presumptive means of resolving Title VII cases at summary judgment.” Tynes v. Fla. Dep’t of Juv. Just., 88 F.4th 939, 952 (11th Cir. 2023) (Newsom, J., concurring).
In Ames, the Court was reviewing McDonnell Douglas because certain courts (including the Sixth Circuit) have been adjusting the McDonnell Douglas framework when the plaintiff is a member of a “majority” group (e.g., race discrimination claims brought by white employees, sex discrimination claims brought by men, etc.). This majority-group McDonnell Douglas framework steepened the plaintiff ’s burden in these so-called “reverse discrimination” cases. Ames rejected this alternative McDonnell Douglas framework and held that all discrimination claims must be evaluated under a uniform standard. That decision, written by Justice Jackson, was unanimous and its outcome was not surprising.
Justice Thomas Uses Ames to Attack McDonnell Douglas
Justice Thomas, however, authored a concurring opinion that criticized a more fundamental facet of the lower court’s decision: he wrote that McDonnell Douglas should not be used at all. Instead, Justice Thomas, joined by Justice Gorsuch, wrote that McDonnell Douglas “has no basis in the text of Title VII” and is a “judge made evidentiary tool” “made out of whole cloth.” As a result, Justice Thomas declared that McDonnell Douglas “is incompatible with the summary-judgment standard.”
As a “conservative,” Justice Thomas (who was once the Chairman of the E.E.O.C.) may not be viewed as an ally by plaintiff ’s lawyers, so his advocacy for discarding McDonnell Douglas may feel like a trap. He is noticeably imprecise about what framework, if any, he would use in place of McDonnell Douglas. But he is also unequivocal in declaring that McDonnell Douglas requires “a plaintiff to prove too much at summary judgment.” More specifically, Justice Thomas criticizes how McDonnell Douglas forces plaintiffs through a judicially-crafted three-step process, with the first step requiring its own, often-onerous subparts, and none of which ask the basic question posed by Rule 56: is there evidence in the record from which a juror could conclude that the employer treated the plaintiff differently on the basis of a protected characteristic? Justice Thomas’s concurrence is quite similar to the concurring opinion in Tynes, written by Judge Newsom of the Eleventh Circuit two years ago, which criticizes McDonnell Douglas as “awfully made up,” with “no textual warrant,” enticing “reviewing courts to focus on non-core issues.”
Criticisms of McDonnell Douglas
To imagine how McDonnell Douglas leads courts astray, consider a typical wrongful termination age discrimination case. There is some debate about what exactly is required at the initial McDonnell Douglas stage in such cases. This confusion, standing alone, exposes how troublesome the framework is. But putting that debate aside, most formulations of the framework require the plaintiff to show, among other things, that he was “replaced by someone substantially younger” or that he was “treated less favorably than similarly-situated comparators.” These requirements are not in the text of the ADEA; they are judicially made-up.
It is easy to see how such a framework could improperly disrupt claims brought by older employees who, for example, occupy unique roles in organizations and thus have no readily identifiable “similarly-situated comparators.” If such an employee is fired and the employer does not directly “replace” him upon termination, the employer will then surely argue that the employee cannot satisfy the first step of the McDonnell Douglas framework. In that instance, summary judgment could be granted, even if there is copious other evidence that the employer was motivated by age-related bias.
Because it is a tool for evaluating “circumstantial” cases, McDonnell Douglas presents another unique problem: as Justice Thomas writes, “it requires courts to draw and maintain an artificial distinction between direct and circumstantial evidence.” In other words, before applying McDonnell Douglas, courts must engage in the messy business of determining whether specific pieces of evidence qualify as “direct” or “circumstantial” evidence. This direct-indirect dichotomy is not legally significant in other areas of the law and makes no sense: “[e]vidence must be considered as a whole, rather than asking whether any particular piece of evidence proves the case by itself — or whether just the ‘direct’ evidence does so, or the ‘indirect’ evidence. Evidence is evidence.” Ortiz v. Werner Enters., Inc., 834 F.3d 760, 765 (7th Cir. 2016). Courts should not be conducting separate analyses of evidence depending on whether it qualifies as “direct” or “indirect” — if there is any evidence of unlawful discrimination, summary judgment should not be granted.
Why Discarding McDonnell Douglas Is Important
“Over-granting” of summary judgment in employment cases is not a minor issue. Starting in 2009, and excluding all settlements and procedural resolutions (voluntary dismissals, consolidations, and transfers), approximately 70% (68.97%) of employment cases in the Northern District of Ohio resulted in summary judgment grants for the employer. The grant rate is 69.93% in the Southern District, almost identical. This high rate of summary dismissal is concerning, given that courts are not asking the litigants if there is an issue of fact as to whether discrimination or unlawful retaliation occurred, as required by Rule 56. Instead, courts are asking plaintiffs to run a gauntlet of judge-made elements that have no textual support in the relevant statutes.
As a result, some federal circuits have already adopted an alternative to McDonnell Douglas, sometimes called the “convincing mosaic” standard. Despite “its misleadingly florid label,” the “convincing mosaic” rule is “basically just Rule 56 in operation.” Tynes, 88 F.4th at 951. In assessing a “convincing mosaic,” courts simply evaluate direct and indirect evidence as a whole to decide whether a reasonable factfinder could conclude that a protected characteristic motivated an illegal decision by the employer. See, Ortiz, 834 F.3d 760. Judge Newsom acknowledges that courts are “over-granting” summary judgment, writing that “ditching [McDonnell Douglas] in favor of something that looks more like the convincing-mosaic standard would lead to more trials.” But while this may impose more burden on our court system, litigants and courts are not allowed to “jerry-rig” doctrines to avoid “time- and labor-intensive” claims that are legally viable. Tynes, 88 F.4th at 956.
Of course, it bears noting that, earlier this year, the US Supreme Court denied a petition for certiorari that sought reversal of McDonnell Douglas in a religious discrimination case. Hittle v. City of Stockton, 145 S.Ct. 759 (2025). Justices Thomas and Gorsuch dissented from that denial, leaving seven justices who declined to hear the issue. But while Justice Kavanaugh agreed to deny cert in that instance, it is noteworthy that, as a D.C. Circuit judge, he described McDonnell Douglas as a “largely unnecessary sideshow” “spawning enormous confusion and wasting litigant and judicial resources.” Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008). Thus, if the right case presents itself, the Court appears to already be three-fourths of the way towards accepting a petition for certiorari to evaluate whether McDonnell Douglas should be used at all. For that reason, lawyers and courts may want to heed Justice Thomas’s concurrence, which warned the employment legal community that the McDonnell Douglas framework was “underinclusive” of otherwise viable employment discrimination claims. Hittle, 145 S.Ct. at 762.
For more information, or to seek counsel from our Employment group, please reach out to request a consultation or call us at 216-696-1422.
___
*This article was originally authored for publication in the November/December 2025 Edition of the Cleveland Metropolitan Bar Journal. To view this article on the Cleveland Metropolitan Bar Association website, follow this link and visit Page 35.
