Antidiscrimination Advocates Should Welcome Thomas’s Overture

Court watchers are saying that the US Supreme Court’s June 5 “reverse discrimination” decision will be a boon to majority group plaintiffs who seek to challenge diversity, equity, and inclusion programs they feel unfairly disadvantage them.

The unanimous court held that these claims are subject to the same rules as any other kind of employment discrimination claims.

Commentators could be right that the decision will spur new challenges to DEI programs. But we think the concurrence by Justice Clarence Thomas, joined by Justice Neil Gorsuch, may end up being more important—and it could help strengthen the protections that antidiscrimination laws offer to historically disadvantaged groups.

As antidiscrimination scholars, we rarely find ourselves in agreement with Thomas. In this case, however, we think many of his points are well-taken. In fact, we filed an amicus brief that makes very similar arguments. As Thomas (and we) explain, over the past 50 years, judges have developed an enormously complex array of rules that they use to evaluate the viability of discrimination claims, a process known as “McDonnell Douglas burden-shifting,” after the case that began it all.

Thomas argues that these judge-made rules “tend to distort the underlying statutory text, impose unnecessary burdens on litigants, and cause confusion for courts.” He suggests the court should consider throwing them all out and focusing instead on the law itself. We agree.

Most federal employment discrimination claims are brought under Title VII of the Civil Rights Act of 1964. The relevant language is pretty simple. It prohibits employers from refusing to hire, firing, or otherwise discriminating against an individual in the “terms, conditions or privileges of employment because of such individual’s race, color, religion, sex, or national origin.” Statutes addressing age and disability discrimination use very similar language.

Thus, generally, when a case goes to a jury, a worker simply has to prove—using whatever kind of evidence is relevant—that she was subject to an adverse action “because of” a protected trait.

But before the case gets to a jury, the employer typically moves for summary judgment—and courts routinely dismiss workers’ cases when they fail to satisfy various judge-made rules. For example, the specific rule at issue in this case (now repudiated by the court) required a plaintiff bringing a reverse-discrimination claim to identify “background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.”

Another requires plaintiffs to identify a “comparator” who is nearly identical, other than the relevant trait. Courts dismiss cases that lack such comparators, even when the worker might have other strong evidence of discrimination, such as biased comments made by her boss. A third rule says that if the person who hired the employee is also the person accused of unfairly discriminating, there is a “strong inference” against finding discrimination. Studies suggest that this inference is entirely misplaced. These are just the tip of the iceberg. There are dozens more, so many that one of us has written an entire treatise just on this body of law.

Some lower courts applying the McDonnell Douglas test also require discrimination plaintiffs to discredit any legitimate reason offered by the employer for its action as “pretextual.” To be sure, if a plaintiff proves an employer is lying, it’s reasonable to conclude the employer may be trying to cover up improper discrimination. But the converse isn’t true. If a protected trait made a difference in the employer’s decision, or even partially motivated a decision, both the Supreme Court’s decisions and the language of the law make clear that it is irrelevant whether a legitimate concern may have also played a role. Requiring a plaintiff to “prove pretext” places an unfair burden on the worker, one that goes beyond what Congress required.

If all of this sounds confusing to you, you’re right. For almost as long as the McDonnell Douglas test has existed, courts have suggested it is unhelpful. In one particularly notable case, US Court of Appeals for the Tenth Circuit Judge Harris Hartz wrote an opinion applying McDonnell Douglas—and also a separate opinion disapproving of his own opinion. This isn’t a partisan or ideological issue. Justices Brett Kavanaugh and Gorsuch, both named to the Supreme Court by President Donald Trump, wrote trenchant critiques as lower court judges. So have prominent liberal-leaning judges, including Judges Diane Wood and Denny Chin, both of whom were considered to be strong candidates for a Supreme Court nomination by President Barack Obama.

Thomas’s concurrence invites litigants to argue that McDonnell Douglas should be abandoned, or at least that the Supreme Court should clarify that it’s one way of proving a case but not the only way of proving a case. Lawyers who want to ensure victims of discrimination can have their day in court should accept the overture.

The case is Ames v. Ohio Dep’t of Youth Servs., No. 23-1039, 6/5/25.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

Katie Eyer is a professor at Rutgers Law School.

Sandra Sperino is a professor at University of Missouri School of Law.

Deborah Widiss is a professor at Indiana University Maurer School of Law.

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