Justice Thomas Again Jabs at Decades-Old Workplace Bias Test (1)

The US Supreme Court’s burden-shifting standard for assessing workplace discrimination cases is an irrelevant “judge-made construct” unsupported by federal law, Justice Clarence Thomas said, inviting future challenges to the doctrine.

Concurring with a unanimous ruling in favor of a heterosexual worker, Thomas once again voiced concerns about the misapplication of the McDonnell Douglas test, which courts have used since 1973 to evaluate indirect evidence of bias. It imposes unnecessary burdens on litigants and confuses courts, and “undeniably plays a prominent role” at the summary judgment stage in Title VII of the 1964 Civil Rights Act cases, he said.

Discrimination law ...