For over half a century, the McDonnell Douglas framework has dictated whether workplace discrimination claims survive summary judgment and reach a jury. On October 5, 2026, the Supreme Court denied two petitions that questioned whether this aging standard still belongs in modern employment law.[i] Over the years, a growing number of attorneys and circuit court judges have criticized the burden-shifting test.[ii] Critics say the framework places too heavy a burden on workers to overcome the summary judgment phase.[iii] Others stick by it, concluding that it is a good test because it provides an analytical framework that is easy for judges to apply and establishes a more predictable process.[iv] The Supreme Court should retire the third step of the McDonnell Douglas framework because the pretext requirement is disconnected from Rule 56 of the Federal Rules of Civil Procedure (“FRCP”) and Title VII of the Civil Rights Act.[v]
The framework was created 53 years ago in the Supreme Court’s decision of McDonnell Douglas Corp. v. Green. The burden-shifting test was created to aid in the analysis of workplace discrimination cases that lacked direct evidence.[vi] It was aimed to bring the litigants and the court expeditiously and fairly to the question of whether the defendant intentionally discriminated against the plaintiff.[vii] Litigants must satisfy the burden-shifting test to survive the summary judgment phase of litigation. The plaintiff must make a prima facie showing that the defendant acted with a discriminatory motive.[viii] In the first of three steps, the plaintiff bears the initial burden of establishing a prima facie case by producing enough evidence to support an inference of discriminatory motive.[ix] Once the plaintiff has met their initial burden, the burden must shift to the defendant to articulate a legitimate, nondiscriminatory reason for the challenged action.[x] If the defendant articulates a justification, the burden then shifts back to the plaintiff to prove that the defendant’s stated justification for the adverse action was, in fact, a pretext for the discrimination.[xi] If the plaintiff proves that the defendant’s reason is pretext, the motion for summary judgment is denied.[xii] If, however, the plaintiff cannot meet the burden and cast doubt on the defendant’s proffered reason, summary judgment will be granted.[xiii] The third step has drawn criticisms from many attorneys, who argue that it stacks the deck against workers.[xiv]
There are two major problems with the McDonnell Douglas framework. First, the framework is incompatible with the summary judgment standard in Rule 56(a) of the FRCP. Rule 56(a) “the court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”[xv] In practice, courts often treat pretext as a hurdle the plaintiff must clear, requiring workers to discredit the employer’s explanation rather than simply showing a genuine dispute of material fact, which is all Rule 56(a) demands. Justice Thomas stated in his concurrence in Ames that “requiring a plaintiff to satisfy the McDonnell Douglas framework . . . requires a plaintiff too much at summary judgment.”[xvi] The second problem with the burden-shifting test is that it fails to explain how a plaintiff can prove a Title VII claim. Title VII provides that “an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.”[xvii] Title VII allows a plaintiff to establish that the employment action was motivated in part because of an unlawful and lawful reason. Criticism from circuit court judges has grown in recent years; in particular, two Fifth Circuit judges criticized the precedent as wrong in more ways than one and noted that the Supreme Court has never mandated the framework.[xviii] In Ames v. Ohio Department of Youth Services, the U.S. Supreme Court clarified that the “requirements of a prima facie case can vary depending on the context and were ‘never intended to be rigid, mechanized, or ritualistic.’” Furthermore, in McDonnell Douglas, they found that facts will “vary in Title VII cases.”[xix] Therefore, the proof required from case to case will differ. The Court further explained that they have long rejected the inflexible formulations of the prima facie standard in disparate-treatment cases.[xx] In 2025, a three-judge panel in the Eleventh Circuit criticized the overuse of the burden-shifting test, stating that it is “not the only game in town” and encouraged lower courts to be aware of other legal paths for workers.[xxi] Justice Thomas’ concurrence in Ames v. Ohio Department of Youth Services further criticized the framework, like other judge-made doctrines, as tending to distort the statutory text, impose unnecessary burdens on litigants, and cause confusion in the courts.[xxii] Justice Thomas further stated that the burden-shifting lacked any basis in the text of Title VII and has been difficult for the courts to apply.[xxiii]
Ames highlights this exact issue, where the Sixth Circuit imposed an additional burden on Title VII plaintiffs who lack underlying legal authority to ground their analysis.[xxiv] The Sixth Circuit’s additional background circumstances rules lacked any basis in the text of Title VII. This additional rule first made its way into the Sixth Circuit in Murray v. Thistledown Racing Club, Inc., where the court, quoting Parker v. Baltimore & Ohio R. Co., explained that in reverse discrimination cases, the first prong has been interpreted to allow majority plaintiffs to establish a prima facie case of intentionally disparate treatment when the plaintiff demonstrate “background circumstances [that] support the defendant is that unusual employer discriminated against the majority.”[xxv] At no point in the development of the additional rule in Parker v. Baltimore & Ohio R. Co., did the D.C Circuit judges refer to the text of Title VII, highlighting the judge-made doctrines’ tendency to distort the statutory text and confuse courts.[xxvi]
The two denied cases, Shelton v. Cuyahoga Metropolitan Housing Authority, and Emily Laughlin v. Miami-Dade County, Florida, would have allowed the U.S. Supreme Court to fix the third step in the McDonnell Douglas framework. In Shelton v. Cuyahoga Metropolitan Housing Authority, the Sixth Circuit held that Mr. Shelton did not adequately rebut his employer’s nondiscriminatory reasons after he posted inappropriate rap videos.[xxvii] In Laughlin v. Miami-Dade County, Florida, the Eleventh Circuit affirmed that Laughlin failed to show that the stated reasons were pretextual.[xxviii] Both cases were denied certiorari without any provided reason for denial.[xxix] The Supreme Court could have denied these cases for a variety of reasons unrelated to the question presented. The fact that the cases have been denied “means that fewer than four members of the Court deemed it desirable to review a decision of the lower court as a matter of ‘sound judicial discretion.’”[xxx] The justices also could have denied the cases for something trivial, such as the review being sought too late. As a matter of fact, the Court has made it clear a denial of review does not imply the Court’s views on the merits of a case. The denial of a case carries no support of the framework. Even though the Supreme Court has elected not to rule on the workability of the framework, the growing criticism and the concurrence from Ames v. Ohio Department of Youth Services, show promise that the Court may, in the near future, decide whether a plaintiff must show a pretext to defeat the employer’s summary judgment motion when Title VII of FRCP does not require plaintiffs to.
The McDonnell Douglas framework’s pretext requirement is disconnected from Rule 56 of the FRCP and Title VII of the Civil Rights Act. For these reasons, the U.S. Supreme Court should retire the third step of the burden-shifting test for evaluating workplace discrimination cases. The litigants who defend the burden-shifting test stated that it provides an analytical framework when there is no direct evidence and establishes a more predictable process because it is easy for judges to apply.[xxxi] As previously stated, the framework has created confusion and been misapplied in lower courts, as seen in Parker v. Baltimore & Ohio R. Co. and Murray v. Thistledown Racing Club, Inc.[xxxii] Changing the third step of the McDonnell Douglas framework would fix the disconnect with the FRCP and Title VII. Instead of the court juggling with the idea of whether the plaintiff sufficiently disproved the employer’s stated reason, the courts should apply Rule 56(a). Without the third step, the court would apply whether, viewing the evidence in the light most favorable to the plaintiff, there is a genuine dispute of material fact as to discriminatory intent. Although Justice Thomas heavily criticized the scheme, noting that the Court limited the use of the framework in situations there is direct evidence, mixed motive, and at the pleading stage, the Supreme Court should retain the McDonnell Douglas framework but retire the third step. Doing so would allow judges to use the test in cases that lack direct evidence, while finally aligning with the FRCP and Title VII.[xxxiii]
[i] See Anne Cullen, Justices Get Chance to Tackle Growing Criticism of Bias Test, Law360: Employment Auth. (Sep. 23, 2026, at 20:22 EDT), https://www.law360.com/employment-authority/articles/2528699? [https://perma.cc/EWA3-4GFG] (“Two certiorari petitions that the U.S. Supreme Court is scheduled to consider Monday . . . experts say the requests to do away with the legal standard may be increasingly compelling as resistance to the doctrine grows.”); see also Alison L. Lynch et al., Debate Over McDonnell Douglas Burden-Shifting Framework Continues as U.S. Supreme Court Again Declines Review, The Nat’l L. Rev. (Oct. 8, 2026), https://natlawreview.com/article/debate-over-mcdonnell-douglas-burden-shifting-framework-continues-us-supreme-court (“On Oct. 5, 2026, the U.S. Supreme Court again declined to revisit the McDonnell Douglas burden-shifting framework frequently used to evaluate employment discrimination and retaliation claims.”).
[ii] See Anne Cullen, Circuits Aren’t Waiting on High Court to Rein in Bias Test, Law360: Employment Auth. (Aug. 6, 2026, at 18:21 EDT), https://www.law360.com/employment-authority/articles/2510027?scroll=1&related=1 [https://perma.cc/7V2J-EB2R] (“The McDonnell Douglas burden-shifting test, set out by the Supreme Court . . . has drawn mounting criticism from judges and litigants who say it is disconnected from the text of Title VII of the Civil Rights Act.”); see also Cullen, supra note i (“Judges at the circuit level are also increasingly voicing concerns about the framework.”).
[iii] See Cullen, supra note i (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 793 (1973)) (discussing Justice Thomas’ concurring statement that the McDonnell Douglas framework “puts too heavy a burden on workers at the summary judgment phase of litigation”); see also Cullen, supra note ii (quoting Adam Grogan, “[i]t unfairly and wholly improperly puts a higher burden on plaintiffs in employment discrimination cases at the summary judgment phase than is put on any other plaintiff in any other cause of action at all.”).
[iv] See Cullen, supra note i (quoting Rafael Nendel-Flores, “[i]t makes it easier and a little more predictable of a process.”).
[v] See Ames v. Ohio Dep’t of Youth Servs., 605 U.S. 303, 320 (2025) (Thomas, J., concurring) (“Its contours have no basis in the text of Title VII or any other source of law.”); see also Cullen, supra note i (“And the three-part regime has broadly been criticized by a growing body of judges who contend it is disconnected from the text of federal anti-discrimination law as well as the Federal Rules of Civil Procedure.”).
[vi] See Cullen, supra note i (explaining the McDonnell Douglas framework was set out “to aid courts in analyzing employment bias cases that lack direct evidence”).
[vii] See Ames, 605 U.S. at 308 (“The McDonnell Douglas framework aims to ‘bring the litigants and the court expeditiously and fairly to th[e] ultimate question’ . . . .”).
[viii] See id. at 306 (“At the first step of that framework, the plaintiff must make a prima facie showing that the defendant acted with a discriminatory motive.”).
[ix] See id. at 308 (citing McDonnell Douglas Corp., 411 U.S. at 802) (explaining the initial burden the plaintiff bears); see also Stephanie Adler-Paindiris, Carolyn Burnette & Ana Shields, What to Know as Courts Rethink McDonnell-Douglas, Law360: Expert Analysis (Feb. 5, 2026, at 16:38 EST), https://www.law360.com/articles/2436427/what-to-know-as-courts-rethink-mcdonnell-douglas [https://perma.cc/NZ4G-TZB4] (“Once the plaintiff meets this burden of production, the defendant must articulate a legitimate, nondiscriminatory reason for the challenged action.”).
[x] See McDonnell Douglas Corp., 411 U.S. at 802 (explaining the burden shifting in McDonnell Douglas framework).
[xi] See Ames, 605 U.S. at 308–309 (explaining the steps of the McDonnell Douglas framework).
[xii] See Ames, 605 U.S. at 309 (“A plaintiff ‘may succeed [under the McDonnell Douglas framework] either directly by persuading the court that discriminatory reason more likely motivated the employer’s proffered explanation is unworthy of credence.”); see also Adler-Paindiris, et al., supra note ix (“The burden then shifts back to the plaintiff to produce sufficient evidence to establish that the defendant’s proffered reason was pretextual and that discrimination was the true motivation for the action.”).
[xiii] See Anne Cullen, supra note ii (“Deployed at the summary judgment phase of litigation, McDonnell Douglas stops a case ahead of trial unless workers can cast some doubt on the company’s proffered rationale behind a challenged workplace decision.”).
[xiv] See Cullen, supra note i (“The pretext inquiry, in particular, is a requirement that many attorneys say stacks the deck against workers.”).
[xv] Fed. R. Civ. P. 56(a).
[xvi] See Ames, 605 U.S. at 322–323 (Thomas, J., concurring) (“In my view, . . . the McDonnell Douglas framework . . . requires a plaintiff to prove too much at summary judgment.” (emphasis added)).
[xvii] 42 U.S.C. § 2000e-2(m) (2026).
[xviii] See Cullen, supra note i (noting the Fifth Circuit judges stating “the precedent is ‘wrong’ in ‘more ways than one,’ and . . . that the Supreme Court never mandated” the McDonnell Douglas framework).
[xix] Ames, 605 U.S. at 310–311 (citing Swierkiewics v. Sorema N. S., 534 U.S. 506, 512 (2002)) (quoting Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978)).
[xx] Id. at 311.
[xxi] See Cullen, supra note i (discussing the three-judge Eleventh Circuit panel “criticizing courts’ overuse of the test”).
[xxii] See Ames, 605 U.S. at 313 (Thomas, J., concurring) (“Judge-made doctrines have a tendency to distort the underlying statutory text, impose unnecessary burdens on litigants, and cause confusion for courts.”).
[xxiii] See id, at 313–314 (Thomas, J., concurring) (“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.”).
[xxiv] See id. at 315 (Thomas, J., concurring) (“Because courts lack an underlying legal authority on which to ground their analysis, there is no principled way to resolve doctrinal ambiguities.”).
[xxv] Murray v. Thistledown Racing Club, Inc., 770 F.2d 63, 67 (6th Cir. 1985) (quoting Parker v. Baltimore & Ohio R. Co., 652 U.S. 1012, 1017 (D.C. Cir. 1981)).
[xxvi] See Ames, 605 U.S. at 315 (Thomas, J., concurring) (“At no point in its development of this new rule did the court refer to the text of Title VII.”).
[xxvii] See Vin Gurrieri, 10 Bias Petitions to Watch as High Court Term Gets Started, Law360: Employment Auth. (Sep. 25, 2026, at 20:08 EDT), https://www.law360.com/employment-authority/articles/2530039 [https://perma.cc/FS8C-2S3E] (discussing the petition from an ex-Ohio officer to upend the McDonnell Douglas framework).
[xxviii] Id.
[xxix] See Grace Elletson, Cop Fired After Posting Rap Videos Can’t Get High Court’s Ear, Law360: Employment Auth. (Oct. 5, 2026, at 9:59 EDT), https://www.law360.com/employment-authority/articles/2528106/cop-fired-after-posting-rap-videos-can-t-get-high-court-s-ear [https://perma.cc/Y4JL-ENMA](“As is their custom, the justices did not provide a reason for the denial.”).
[xxx] Maryland v. Baltimore Radio Show, Inc., 338 U.S. 912, 917 (1950) (“It simply means that fewer than four members of the Court deemed it desirable to review a decision of the lower court as a matter ‘of sound judicial discretion.’”).
[xxxi] See Cullen, supra note i (“It makes it easier and a little more predictable of a process.”).
[xxxii] Murray, 770 F.2d at 67 (quoting Parker v. Baltimore & Ohio R. Co., 652 U.S. 1012, 1017 (D. C. Cir. 1981)).
[xxxiii] See Ames, 605 U.S. at 321 (Thomas, J., concurring) (discussing the steps the Court has taken to limit the use of the McDonnell Douglas framework).
