Thomas Dissent Signals SCOTUS Appetite to Revisit Job Bias Test

Justice Clarence Thomas’ dissent in a Christian firefighter’s bias case may be a further sign the US Supreme Court is open to revisiting a 52-year-old proof scheme it established for workplace discrimination lawsuits.

Thomas is correct that the McDonnell Douglas Corp. v. Green burden-shifting framework can be complicated to apply, attorneys familiar with the issue said. It’s been in use since 1973, when the justices laid it out to help lower courts analyze circumstantial evidence. But as courts applied it over the years, it became confusing enough that it’s easy to get wrong and it’s acquired built-in aspects that are counter-intuitive, they said.

The March 10 dissent joined by Justice Neil Gorsuch opposed the denial of high court review in Hittle v. City of Stockton highlights many of McDonnell Douglas’ pitfalls. These include the framework’s application as decisive at the summary judgment stage, even though the Supreme Court hasn’t addressed whether the burden-shifting scheme should be used there and has indicated it was only designed as a way to order and analyze evidence, he said.

Thomas’ dissent signals the Supreme Court “will be more receptive to hearing cases that challenge either all or parts of McDonnell Douglas,” Prof. Sandra Sperino of the University of Missouri School of Law said. Hittle might not have been the right case to review, Sperino and another attorney said.

Not Just Thomas

The framework has produced “troubling outcomes,” Thomas said. And he isn’t the only justice disenchanted with McDonnell Douglas.

His dissent also cited opinions by Gorsuch and Justice Brett Kavanaugh back when they were federal circuit judges as examples of the “remarkable number” of lower courts that have described the confusion the three-step scheme has spurred.

Under the test, a worker who doesn’t have direct proof of bias first establishes a prima facie case with circumstantial evidence, which shifts the burden to the employer to present a nondiscriminatory justification for its action, which puts the burden back on the worker to prove the employer’s justification is pretextual.

The firefighter in Hittle argued the burden-shifting scheme is at odds with Title VII of the 1964 Civil Rights Act, attorney Alan L. Rupe said. That view would appeal to Gorsuch, he said.

Rupe’s Lewis Brisbois Bisgaard & Smith LLP partner Jeremy K. Schrag pointed to Bostock v. Clayton County, Ga., as an example of Gorsuch’s commitment to enforcing a law’s statutory text.

Then-Judge Kavanaugh held in Brady v. Office of the Sergeant at Arms that it’s best to skip the prima facie case if the employer offers a non-biased reason and go right to the question of whether there’s sufficient evidence of discrimination for a trial, Carolyn Wheeler of Katz Banks Kumin LLP said.

And so many different articulations of McDonnell Douglas have emerged that inter-circuit and intra-circuit splits exist, Sperino said.

“That lends to less uniformity,” the Lewis Brisbois lawyers said. The Supreme Court likes to resolve those types of conflicts, they said.

Not Right Vehicle

It’s not clear a majority of the justices would want to reexamine McDonnell Douglas, but Hittle wasn’t a straight-forward vehicle for review, Wheeler said. The firefighter’s lawsuit involved multiple theories of causation and the justices could be looking for a case with more garden-variety facts, she said.

“I can see that people don’t like” McDonnell Douglas, the former Equal Employment Opportunity Commission appellate lawyer said. But “what would be a good substitute?”

The framework also isn’t the chief reason so many job bias suits aren’t making it to trial, Wheeler said. The “real hurdle” is various doctrines lower courts have come up with that can cause claims to falter, she said.

These doctrines, including an inference drawn against the employee if the same person both hired and fired them, favor employers, Wheeler said.

And some are directly contrary to McDonnell Douglas, including a rule under which an employer—even if mistaken—can avoid liability if it honestly believed its nondiscriminatory reason, Sperino said.

That rule’s in tension with the pretext analysis, which examines whether the employer’s rationale was true, the professor said. She’s the author of a Bloomberg treatise on McDonnell Douglas and its progeny.

Scope of Review

The confusion McDonnell Douglas has caused shows it may be time to set the framework aside, Rupe said.

Overruling and abandoning the framework would be seismic given how long it’s been around, Sperino said. But the justices might only modify the test’s technicalities if they ever revisit the case, she said.

The pretext step in particular can be “very valuable,” as testing the employer’s explanation can help judges, the professor said. That may be something that’s retained in any Supreme Court reexamination, she said.

Thomas’ dissent signals that there’s at least some “appetite for clarifying how McDonnell Douglas works in the context of summary judgment,” Sperino said.

But the justices should reconsider it at every procedural juncture because the underlying legal test should always be the same, she said. Only the procedural requirements should change as a suit advances from the motion-to-dismiss stage through trial, she said.

No ‘Sea Change’

Still, the impact if the framework is ever revamped or eliminated could be minimal.

Cases that should be dismissed will still be dismissed, and workers with enough proof of possible bias will still get a trial, Rupe said. There “won’t be a sea change” in summary judgment results, he said.

At the end of the day, all the same evidence will still be considered, Schrag said.

Whether discrimination occurred is very fact-specific, Sperino said. That won’t change even if McDonnell Douglas is overruled or modified, she said.

The impact would depend on what new test any future Supreme Court decision actually sets, Wheeler said.

But if the justices were to condemn the doctrines that lead to lower courts discounting workers’ evidence at summary judgment, that would be a win for employee rights, she said.