The Supreme Court of the United States’ (SCOTUS) upcoming decision in Ames v. Ohio Department of Youth Services1 could significantly alter how employment discrimination cases are adjudicated. The primary issue before SCOTUS is whether a majority-group plaintiff must show “background circumstances” to pursue a claim for discrimination. Although not explicitly raised by the parties, during oral arguments, the justices questioned the application of the McDonnell Douglas framework as an evidentiary standard at summary judgment. The justices also referenced a pending petition for certiorari in Hittle v. City of Stockton, California,2 which claims that the evidentiary burdens imposed on petitioners by lower courts using McDonnell Douglas conflict with the plain text of Title VII. The justices’ discussion during oral argument in Ames highlights their recognition of the challenges created by the application of the McDonnell Douglas framework.
Background and Procedural history
Marlean Ames, a longtime employee of the Ohio Department of Youth Services and a heterosexual woman, alleged that she was denied a promotion and later demoted due to her sexual orientation. The Sixth Circuit affirmed summary judgment for the employer, applying the “background circumstances” rule, which requires majority-group plaintiffs to provide extra evidence of discrimination. Ames appealed to SCOTUS, arguing that Title VII does not impose different evidentiary burdens based on a plaintiff’s group membership. The United States, as an
amicus curiae, supported her position.
During oral arguments in
Ames, several justices expressed skepticism about the Sixth Circuit’s approach, questioning whether Title VII allows courts to apply different evidentiary standards based on group membership.
3 The justices also explored the appropriateness of using the
McDonnell Douglas framework to assess summary judgment.
4
The McDonnell Douglas Framework
McDonnell Douglas Corp. v. Green (1973)5 provides a three-step process for assessing employment discrimination claims:
1. Plaintiff’s Prima Facie Case6 — The employee must show that (i) the plaintiff is a member of a protected class, (ii) the plaintiff was qualified for the position and performed it in a satisfactory manner, (iii) the plaintiff suffered an adverse employment action, and (iv) the adverse employment action occurred under circumstances giving rise to an inference of discrimination.
2. Employer’s Non-Discriminatory Justification — The employer must provide a legitimate, non-discriminatory reason for the adverse employment action.
3. Pretext Inquiry — The plaintiff must demonstrate that the employer’s justification for the adverse employment action is a pretext for discrimination.
Evolution of the McDonnell Douglas Framework
Courts often dismiss cases at the summary judgment stage if the plaintiff fails to demonstrate sufficient evidence of a
prima facie case or pretext. SCOTUS has refined the
McDonnell Douglas framework by clarifying the burdens of production (pleading essential elements) versus persuasion (weight of evidence provided by each party).
In
Texas Department of Community Affairs v. Burdine,
7 SCOTUS clarified the employer’s obligation to provide evidence of a non-discriminatory reason for its actions once a plaintiff establishes a
prima facie case of discrimination. The court noted in
Burdine that the employer’s burden is one of production, not persuasion. The employer need not convince the court of its non-discriminatory motive but must simply introduce evidence that raises a genuine issue of fact. The ultimate burden of persuasion remains with the plaintiff.
Subsequently, in
St. Mary’s Honor Center v. Hicks,
8 SCOTUS addressed the plaintiff’s burden in demonstrating that the employer’s proffered reasons are pretextual. The court held that disproving an employer’s justification is enough to permit a finding of discrimination. Reinforcing its reasoning in
Burdine, the court explained that the plaintiff retains the ultimate burden of proving intentional discrimination.
In
Reeves v. Sanderson Plumbing,
9 SCOTUS corrected the lower court’s misconception that a plaintiff must provide additional, independent evidence of discrimination beyond disproving the employer’s justification. The court held that evidence discrediting the employer’s explanation, when coupled with the plaintiff’s
prima facie case, is sufficient to lead a factfinder to infer unlawful discrimination.
During oral arguments in
Ames, the justices questioned whether the
McDonnell Douglas framework imposed a higher burden on plaintiffs to prove discrimination than is required by the plain text of Title VII
10 — a critique repeatedly raised by scholars and practitioners alike.
Criticism of the McDonnell Douglas Framework
Despite having shaped employment discrimination litigation for over 50 years, scholars have critiqued the
McDonnell Douglas framework’s efficacy. Sandra Sperino, in “Irreconcilable:
McDonnell Douglas and Summary Judgment,”
11 argues that
McDonnell Douglas unfairly tilts the pleading and persuasion processes in favor of employers, making it harder for employees to survive summary judgment. Katie Eyer, in “The Return of the Technical
McDonnell Douglas Paradigm,”
12 contends that lower courts have rigidly applied
McDonnell Douglas in ways that undermine its original intent, dismissing cases on procedural grounds rather than substantive merits.
Compounding these concerns is SCOTUS’ lack of clear guidance on the precise application of the
McDonnell Douglas framework. In
Swierkiewicz v. Sorema, N.A.,
13 SCOTUS described
McDonnell Douglas as “an evidentiary standard, not a pleading requirement,” but has never clarified what this characterization means. As a result, lower courts often interpret
McDonnell Douglas in a manner that elevates the plaintiff’s evidentiary burden at summary judgment, treating it as a more rigid test than intended. Accordingly, plaintiffs face heightened scrutiny at summary judgment in employment discrimination matters, despite the principle that factual disputes should be resolved at trial. Given these long-standing concerns and the questions raised during oral arguments in
Ames, SCOTUS may finally clarify
McDonnell Douglas.
Justice Brett Kavanaugh has been particularly critical of the
McDonnell Douglas framework. As a judge on the D.C. Circuit, he authored the opinion in
Brady v. Office of Sergeant at Arms,
14 where he emphasized that “the question whether the plaintiff in a disparate-treatment discrimination suit actually made out a
prima facie case is almost always irrelevant when the district court considers an employer’s motion for summary judgment or judgment as a matter of law.” He further reasoned that courts should instead “resolve one central question: Has the employee produced sufficient evidence for a reasonable jury to find that the employer’s asserted non-discriminatory reason was not the actual reason and that the employer intentionally discriminated?”
Collectively, these critiques suggest that
McDonnell Douglas, while originally intended to provide a structured means of proving discrimination claims, has instead become a tool for summary dismissal of cases rather than a means of ensuring fair trials.
Massachusetts and First Circuit Treatment of McDonnell Douglas
Massachusetts courts have long adhered to
McDonnell Douglas when analyzing discrimination claims under both federal Title VII and the state’s anti-discrimination statute, M.G.L. c. 151B. However, the Massachusetts Supreme Judicial Court (“MA SJC”) has developed a more plaintiff-friendly approach compared to federal courts.
In
Blare v. Husky Injection Molding Systems,
15 the MA SJC explicitly rejected SCOTUS’ evidentiary burden imposed on the plaintiff in
Hicks and reaffirmed
Wheelock College v. Massachusetts Commission Against Discrimination,
16 which established Massachusetts as a “pretext-only” jurisdiction. As a result, in Massachusetts, if a plaintiff shows that an employer’s justification for the adverse employment action is false, a jury may infer discrimination without requiring additional evidence of bias.
In
Lipchitz v. Raytheon Co.,
17 the MA SJC further clarified that plaintiffs must demonstrate a causal link between discriminatory animus and the adverse employment action, but need not disprove every single justification offered by the employer in order for a jury to infer that discrimination was the true motive.
This contrasts with the “pretext-plus” approach applied by various federal courts, often requiring additional proof of discriminatory animus, beyond pretext. For example, the First Circuit, in
Boykin v. Genzyme Therapeutic Products, LP,
18 recently upheld summary judgment against a plaintiff by applying the
McDonnell Douglas burden-shifting steps and requiring definitive evidence of pretext — the “pretext-plus” approach.
Conclusion
SCOTUS’ decisions in
Ames (and possibly
Hittle) have the potential to reshape employment discrimination law in two critical ways: by invalidating the Sixth Circuit’s additional burden for majority-group plaintiffs, and by reevaluating the efficacy of the
McDonnell Douglas framework. If the court narrows or eliminates
McDonnell Douglas at the summary judgment stage, it could fundamentally change how courts assess discrimination claims, ultimately making it easier for plaintiffs to proceed to trial when credible evidence calls an employer’s stated reason into question.
In Massachusetts, the impact may be limited since the courts already follow a plaintiff-friendly “pretext-only” standard. However, plaintiffs in First Circuit cases may find it easier to avoid early dismissal, narrowing the gap between state and federal employment discrimination litigation. While the ruling’s full impact remains uncertain, it could mark a pivotal moment in the evolution of employment discrimination litigation.
Stuthi Balaji serves as assistant general counsel for the MBTA/MassDOT, where she navigates the complex intersections of labor, employment and transportation law. In her role, she represents the authority in high-stakes litigation and arbitration, advises leadership across the commonwealth, and proactively shapes policies to mitigate risk. Before joining MassDOT, Balaji sharpened her labor relations acumen as an labor and employment attorney for the Massachusetts Trial Court and built a strong litigation foundation as an associate attorney at a boutique labor and employment firm in New York City. With experience spanning both the public and private sectors, she brings a well-rounded perspective to the evolving landscape of labor and employment law. A dedicated advocate for professional growth and community engagement, Balaji is an active member of the Massachusetts Bar Association’s Labor & Employment Section and has previously held leadership roles with the New York City Bar Association. 1. Ames v. Ohio Dep’t of Youth Servs., 145 S. Ct. 118 (2024).
2. In
Hittle, a fire chief in California alleged that he was terminated due to his religious beliefs and past speech related to union issues. The Ninth Circuit applied the
McDonnell Douglas framework and affirmed summary judgment for the city of Stockton, finding that Hittle failed to disprove the employer’s proffered reasons for termination. On appeal, Hittle has challenged the viability of
McDonnell Douglas itself, arguing that it conflicts with Title VII’s statutory language and
Bostock v. Clayton County, which held that an adverse employment action can have multiple “but-for” causes. If the Supreme Court were to grant certiorari in
Hittle, its resolution could ultimately be even more consequential for the future of employment discrimination law than
Ames.
3. Citations to the hearing transcript (“Tr.”) refer to the Transcript of Oral Argument for
Ames v. Ohio Dep’t of Youth Servs., No. 23-1039 (U.S. argued Feb. 26, 2025); Justice Clarence Thomas at Tr. 41:20-24, 42:8-9; Justice Elena Kagan at 43:7-9, 43:21-25, 44:1-3; Justice Amy Coney Barret at 48:9-11, 49:11-25, 50:1-9.
4. Justice Samuel Alito at Tr. 37:24-25, 38:1-14, Justice Ketanji Brown Jackson at 45:17-25, 46:1-4.
5. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824, 36 L. Ed. 2d 668 (1973),
holding modified by Hazen Paper Co. v. Biggins, 507 U.S. 604, 113 S. Ct. 1701, 123 L. Ed. 2d 338 (1993).
6. This is a general restatement of the elements. The court in McDonnell Douglas stated the four
prima facie elements for hiring discrimination specifically. However, these elements have been adapted to different types of disparate treatment claims (hiring, firing and promotion). For example, in a discriminatory firing case, the plaintiff can satisfy the second element by demonstrating that their job performance met their employer’s expectations, while in a hiring case, the plaintiff has to demonstrate that they were qualified for the job to which they applied. The application of these elements has been shaped by case law within each jurisdiction.
7. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254, 101 S. Ct. 1089, 1094, 67 L. Ed. 2d 207 (1981).
8. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507, 113 S. Ct. 2742, 2747, 125 L. Ed. 2d 407 (1993).
9. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 134, 120 S. Ct. 2097, 2101, 147 L. Ed. 2d 105 (2000).
10. Justice Neil Gorsuch at Tr. 16:15-17:3; Justice Brett Kavanaugh 18:8-19:11.
11. Sandra F. Sperino, “Irreconcilable:
McDonnell Douglas and Summary Judgment,” 102 N.C. L. REV. 459 (2024).
12. Katie Eyer, “The Return of the Technical
McDonnell Douglas Paradigm,” 94 WASH. L. REV. 967 (2019).
13. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510, 122 S. Ct. 992, 997, 152 L. Ed. 2d 1 (2002).
14. Brady v. Office of Sergeant at Arms, 520 F.3d 490, 492 (D.C. Cir. 2008).
15. Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 444 (1995).
16. Wheelock Coll. v. Massachusetts Comm’n Against Discrimination, 371 Mass. 130, 139 (1976).
17. Lipchitz v. Raytheon Co., 434 Mass. 493, 506 (2001).
18. Boykin v. Genzyme Therapeutic Products, LP, 93 F.4th 56, 62 (1st Cir. 2024).