The Supreme Court’s recent decision in Ames v. Ohio Department of Youth Services is a narrow one, and only addressed the burdens of proof for a reverse discrimination case. The Court held that the same burdens apply regardless of the employee’s protected category. However, the Court missed the opportunity to re-evaluate whether the cumbersome McDonnell Douglas framework for deciding employment discrimination cases should be the only way to prove a discrimination claim.
The McDonnell Douglas framework requires that the employee first has to prove, by a preponderance of the evidence, a prima facie case of discrimination, i.e., (1) the employee is in a protected class; (2) the employee was qualified for the job; (3) the employer took an adverse employment action against the employee; and (4) there is some basis to believe that illegal discrimination caused or motivated the employer’s action. Then, the burden shifts to the employer to provide an allegedly legitimate, non-discriminatory reason for taking the adverse employment action. Finally, the burden shifts back to the employee to show, by a preponderance of the evidence, that the employer’s alleged legitimate reasons were pretextual, i.e., a cover-up for discrimination.
This McDonnell Douglas framework is a judge-made doctrine that appears nowhere in the statute – Title VII of the Civil Rights Act of 1964, the primary federal employment discrimination law.
Several public interest groups submitted amicus briefs in Ames. The National Employment Lawyers Association’s amicus brief argued that McDonnell Douglas should no longer be the only way to prove a discrimination claim, since it goes beyond what Title VII requires, and improperly prevents employees from bringing meritorious employment discrimination claims to a jury trial.
Justice Thomas, in his concurring opinion in Ames (joined by Justice Gorsuch) recognized this problem. He contrasted the McDonnell Douglas framework with Rule 56 of the Federal Rules of Civil Procedure, which only requires that the employee “present sufficient evidence to create a ‘genuine dispute as to’ whether the employer’s stated reason was pretextual.” Justice Thomas explained that while the McDonnell Douglas framework requires employees to prove facts by the preponderance of the evidence standard at summary judgment, Rule 56 of the Federal Rules of Civil Procedure does not require employees to prove facts by any standard to survive summary judgment. This heightened standard has placed a more onerous burden on employees pursuing claims of employment discrimination than for all other categories of plaintiffs for over fifty years.
Justice Thomas concluded that if the issue were squarely before him, he might find the McDonnell Douglas framework unworkable and without a textual basis under Title VII. Until then, he concluded, “litigants and lower courts are free to proceed without” it.
If the Supreme Court were to hold that the McDonnell Douglas framework is just one way – not the only way – of proving a discrimination claim, then this change would strengthen Title VII protections for historically disadvantaged groups. The lower courts would have to assess the totality of the evidence, and ask whether the employee’s protected status or conduct was one of the causes for the employer’s adverse employment action. This would allow Title VII to function at the level of inclusivity and protection that Congress intended when it passed the landmark Civil Rights Act of 1964, and when it amended this law over the years to address problematic court decisions.