Potential Castaway (Part 2): The McDonnell Douglas Doctrine

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Earlier this year, the U.S. Supreme Court declined to review a case requesting the Court look at whether the application of the McDonnell Douglas Doctrine should be discarded.

United States New York Employment and HR

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Earlier this year, the U.S. Supreme Court declined to review a case requesting the Court look at whether the application of the McDonnell Douglas Doctrine should be discarded. The question became: When will another party ask the Supreme Court to review the doctrine? The answer: A few months.

What's happened?

A plaintiff in a Sixth Circuit case, William J. Shelton v. Cuyahoga Metropolitan Housing Authority, et al., has recently asked the Court to grant certiorari and consider two questions:

“Whether the [Supreme Court] should overrule McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)”; and
If not, “[w]hether step three of the McDonnell Douglas burden-shifting framework requires a plaintiff to disprove the employer's proffered reason for the adverse employment action, when the text of Title VII provides that an action may have more than one motivating factor.”

What argument is being made?

A similar argument is being made in Shelton that was raised by Supreme Court Justices Clarence Thomas and Neil Gorsuch in March 2025 and the petitioner in Julio Lincinio v. the State of New York, et al. — that the doctrine may run afoul of Rule 56's summary judgment requirements and that it imposes requirements not found in the text of Title VII of the Civil Rights Act of 1964, as amended.

Why does this matter?

The implications of granting this petition and potentially casting away the McDonnell Douglas doctrine would be seismic. The doctrine's framework has been used for more than 50 years. Completely washing away or eroding parts of the doctrine could create “ripples in the water” that continue for years — if not decades.

What does the road ahead look like?

Whether the Supreme Court grants certiorari remains to be seen. So, for now, it's business as usual. But if the Supreme Court reviews the doctrine, it will be watched closely by employment attorneys on both sides of the aisle from coast to coast.

How will this change litigation for employment discrimination cases?

Even if the Supreme Court reviews the doctrine — and overrules or modifies it — there will likely be no change to how litigation is conducted. For example, the written discovery to which employers respond and document requests submitted during litigation will likely stay the same. Instead, the real difference will be how the case is argued at summary judgment.

What should employers do?

Employers should follow best practices, such as ensuring policies are up-to-date, conducting thorough workplace investigations when discrimination claims are made, implementing uniform policies for all employees, etc. This will increase their chances for success in employment litigation — regardless of what standard is in effect . . . or washed away.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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