On June 5, 2025, the Supreme Court unanimously held in Ames v. Ohio Dept. of Youth Services that all plaintiffs, regardless of race, color, religion, national origin, or sex, must satisfy the same proof requirements to meet their initial burden of establishing an employment discrimination claim under Title VII of the Civil Rights Act.  That initial burden requires only that a plaintiff show that she applied for a position for which she was qualified and was rejected “under circumstances which give rise to an inference of unlawful discrimination.” The Court concluded that the plaintiff in this case, a straight woman, was unlawfully burdened by the Sixth Circuit’s additional requirement that “majority-group” plaintiffs provide more evidentiary support than “minority-group” plaintiffs to raise an initial inference of discrimination.

The Ames decision applies the legal framework mentioned above, which the Court first outlined in McDonnell Douglas v. Green.  This framework is used in most jurisdictions for proving all intentional discrimination claims in the absence of direct evidence of discrimination.  In Ames, the Court limited its holding to a rejection of the extra burden the Sixth Circuit and four other federal Courts of Appeals had imposed on a subset of “majority-group” plaintiffs.  Although the Court’s decision is not surprising, many employment lawyers have been especially interested in it.  In Justice Thomas’s concurrence, joined by Justice Gorsuch, he suggests the Supreme Court, when next presented with the opportunity, should consider sweeping changes to the McDonnell Douglas framework, despite its having been accepted by the Court and used by the lower courts since 1981.

The Ames Decision

In Ames, a straight woman, Marlean Ames, alleged that her employer unlawfully discriminated against her when (1) she applied for a promotion and the employer instead selected a gay candidate; and (2) the employer demoted her and filled her position with a gay candidate.  Ames attempted to establish her prima facie case of sexual orientation discrimination by showing she was qualified for the positions, had been denied an employment opportunity (i.e., non-selection for promotion and demotion), and was replaced by individuals who do not share her sexual orientation.

The prima facie showing—that a plaintiff is qualified, a member of a class protected by Title VII, and suffered some employment related harm under circumstances that suggest an inference of discrimination—is the first step in the three-part McDonnell Douglas framework used by courts to assess claims of intentional employment discrimination.  This first step is an initial burden a plaintiff must meet to raise an inference of discrimination, and it is not intended to be an onerous one.  Instead, it is designed to screen out potential plaintiffs who experience the most common non-discriminatory reasons for not being hired (e.g., they are not qualified for the job, or the employer decided not to hire anyone).  In the face of that evidence, an employer must provide a non-discriminatory reason for its decision, and then an employee must carry the ultimate burden of demonstrating by a preponderance of the evidence that a discriminatory reason more likely caused the employment action they have challenged.

The trial court granted the employer’s motion for summary judgment, reasoning that the plaintiff was as a member of a “majority-group” and had failed to establish the following additional, non-traditional element of her prima facie case: “background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.”  The Sixth Circuit affirmed the judgment for the employer, and it explained that the plaintiff could have met her heightened burden by, for example, presenting “evidence that a member of the relevant minority group (here, gay people) made the employment decision at issue, or with statistical evidence showing a pattern of discrimination . . . against members of the majority group.”

The Supreme Court granted certiorari review to determine whether “majority” employees could be subject to a heightened evidentiary standard at the prima facie stage.

In the opinion authored by Justice Jackson, the Supreme Court unanimously held that courts may not impose a heightened burden on “majority-group” plaintiffs.  First, the Court pointed to the text of Title VII, which does not differentiate between majority-group and minority-group plaintiffs and instead provides anti-discrimination protections for “any individual.”  Second, the Court discussed its own prior cases, in which it has consistently held that Title VII treats all plaintiffs the same, regardless of their race, color, religion, sex, or national origin.  Third, the Court pointed to the purpose of the judge-made prima-facie case framework, which “was never intended to be rigid, mechanized, or ritualistic.”  The Court reasoned that the “background circumstances” requirement applied by the Sixth Circuit departed from this purpose because it “subject[ed] all majority-group plaintiffs to the same, highly specified evidentiary standard.”  The Court vacated the lower court judgment, and it remanded the case for application of the traditional prima facie standard.

The Court’s approach was similar to the one it followed last year in another decision evaluating proof requirements in Title VII cases—Muldrow v. City of St. Louis.  The Muldrow Court unanimously rejected the requirement imposed by a majority of lower courts, that a Title VII plaintiff challenging discrimination in the terms, conditions, or privileges of employment must  prove that the discriminatory action, which the courts referred to as an “adverse action,” caused significant or substantial harm.  The Court noted that the statute does not use the term “adverse action” and certainly does not use words like significant or substantial harm.  The Court held that plaintiffs in such cases need only show that the challenged employment decision caused them “some harm.”

The Court’s holding in Ames (like that in Muldrow) is not particularly controversial because it tracks Title VII’s mandate for equal treatment.  The National Employment Lawyers Association (“NELA”) released a statement on June 6, 2025, celebrating the Court for both explaining the intended flexibility of the McDonnell Douglas framework and unanimously agreeing that discrimination based on sexual orientation is unlawful under Title VII.  EEOC Acting Chair Andrea Lucas also released a statement applauding the decision, and she pointed to an amicus brief filed by a bipartisan group of Commissioners advocating for the same position the Supreme Court adopted.

The decision in Ames may lead to an increase in claims filed by plaintiffs who are members of the historical “majority” in the circuits that had followed the Sixth Circuit approach, but it likely will not impact the rate at which such plaintiffs win their cases.  All plaintiffs must still meet the ultimate burden of proving discrimination “either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.”  Ames does not change this requirement, and it simply ensures that “majority-group” access to the courts in the first instance will not be different from that afforded to “minority-group” plaintiffs.  This is already the case in a majority of jurisdictions

The Future of the McDonnell Douglas Framework

The more controversial aspect of the Ames decision is Justice Thomas’s concurrence, which refers to the McDonnell Douglas framework as “unworkable” and envisions a future case in which the Court expressly considers whether the framework is a “useful evidentiary tool.”  Justice Thomas contends that the McDonnell Douglas framework is not grounded in the text of Title VII and causes “significant confusion” and “troubling outcomes on the ground,” particularly at the summary judgment stage.

The McDonnell Douglas framework is a three-step burden-shifting standard initially designed to help courts evaluate evidence in an orderly way to determine the ultimate question: in the absence of direct evidence of unlawful discrimination, is it nevertheless more likely than not a plaintiff experienced unlawful discrimination.  At the first step, as explained above, a plaintiff must establish their prima facie case.  This creates an inference of discrimination.  At the second step, an employer is given the opportunity to rebut the inference by stating a legitimate non-discriminatory reason for the adverse employment action.  At the third step, an employee must show by a preponderance of the evidence that their protected characteristic was a but for cause of the harmful action they have challenged.  They may do this directly by showing that discrimination more likely motivated the employer or indirectly by showing that the employer’s reason is not credible.  Thus, the ultimate burden of proving discrimination rests with the plaintiff.

Altogether, McDonnell Douglas is a framework designed to allow plaintiffs to provide circumstantial evidence that can support a finding of employment discrimination.  Title VII states it is unlawful “to fail or refuse to hire or to discharge any individual, or otherwise to  discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”  In Title VII, Congress attempted to address discrimination by providing employees a pathway to relief for the injuries they face as a result of discrimination.  The existence of this pathway is intended to deter discrimination, and the McDonnell Douglas framework protects this pathway.  Specifically, the framework recognizes the reality that in a world where employers seldom admit to discrimination, proving discrimination is possible through circumstantial evidence by forcing an employer to give a reason for the challenged harmful employment action and placing the employer’s stated justification for its decision under a microscope.  Notably, the framework was first articulated in a case that had been fully tried in a bench trial, and it was designed to explain how the evidence could be analyzed at the end of the trial against the statutory requirement of proving intentional discrimination on a prohibited basis.

Justice Thomas’s first criticism of McDonnell Douglas is that the framework is a “judge-made evidentiary ‘tool’” that has “no basis in the text of Title VII or any other source of law.”  Justice Thomas briefly explores the origins of the framework, and he explains that its intended purpose “was to help ‘bring the litigants and the court expeditiously and fairly to th[e] ultimate question’ in a Title VII case,” whether the plaintiff experienced unlawful discrimination.  Justice Thomas takes issue with the fact that Title VII does not explicitly discuss a multi-step burden-shifting scheme, and thus it is improper for courts to rely on McDonnell Douglas to assess claims for discrimination.

Justice Thomas’s second criticism is that the framework is often applied incorrectly at the summary judgment stage.  Under the federal summary judgement standard, a court must grant summary judgment when the moving party establishes that there is “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”  In Justice Thomas’s view, the McDonnell Douglas framework departs from that standard.  Instead of asking whether a plaintiff has established a “genuine dispute” as to whether they faced discrimination, the final stage of the McDonnell Douglas framework asks whether a plaintiff has “prove[d] by a preponderance of evidence that the legitimate reasons offered by the defendant . . . were a pre-text for discrimination.”  Justice Thomas explains that applying this heightened standard at the summary judgment stage “requires a plaintiff to prove too much[.]”[1]

As mentioned above, the McDonnell Douglas framework is a proof scheme for evaluating all the evidence at the end of a trial, and its specific language is not intended to allow courts to depart from the “genuine dispute” test applicable at the summary judgment stage.  In Swierkiewicz v. Sorema, the Supreme Court clarified, in an opinion authored by Justice Thomas, that the facts needed to establish the McDonnell Douglas prima facie elements do not need to be included in a complaint, because this proof framework is not designed to replace the federal pleading standard for bringing a claim, which only requires a short, simple statement of the claim.  Similarly, if the Court wants to revisit the McDonnell Douglas framework, it could clarify that the third step is not designed to replace the federal summary judgment standard.  However, Justice Thomas appears to want more than just a clarification of the summary judgment standard.  To Justice Thomas, the McDonnell Douglas framework is confusing, and lower courts struggle to apply it consistently.  This leads to “complexity, confusion, and erroneous results.”  Justice Thomas concludes simply that if judges cannot make sense of the framework, that “suggests that the framework is unworkable.”

To Justice Thomas’s point, much like the “background circumstances” requirement at issue in Ames, a number of lower court doctrines create hurdles in the application of the McDonnell Douglas framework that drive inconsistent results and are used inappropriately to raise inferences against plaintiffs.  For example, the “same-actor” doctrine, recognized in a minority of circuits, is a judge-made rule that creates an inference against discrimination if the same person both hired and fired the plaintiff.  This doctrine ignores the fact that a decision-maker might, for example, hire someone expecting them to act in a certain manner deemed acceptable for that person’s race or sex and then fire them when they act differently.  That is discrimination.

Applying such doctrines mechanically at the summary judgment stage creates inconsistencies in Title VII jurisprudence across the country and allows judges to discredit circumstantial evidence of discrimination and withhold cases from a jury despite there being a genuine dispute of material fact on the ultimate question of discrimination.

Thus, one way to address Justice Thomas’s concerns, short of fully rejecting the McDonnell Douglas framework, is simply dispensing with lower court doctrines that inappropriately raise the bar for plaintiffs attempting to bring claims or withstand summary judgment.  The Court did this in Ames and Muldrow, and it has taken a similar approach in the past.  In the late 1980s and early 1990s, several circuits adopted the “after-acquired evidence” rule.  Under the rule, a plaintiff’s case failed if the employer found evidence after the discriminatory decision the plaintiff challenged that would have been a lawful justification for the employer’s action.  In 1995, in McKennon v. Nashville Banner, the Court held that a later-discovered reason could not possibly have been the reason for the decision and therefore such evidence could not serve as a total bar to a discrimination claim.  As the Court explained, if it barred all liability, it would prevent employees from being compensated for injuries caused by discrimination and it would weaken the anti-discrimination statutes’ purpose and ability to deter discrimination.  Dispensing of the judge-made hurdles identified above would achieve the same policy objectives and better ensure that judges apply the correct summary judgment standard to Title VII claims.

Justice Thomas’ concurrence in Ames raises some important criticisms about the McDonnell Douglas framework as applied at the summary judgment stage, and the Court does not need to destroy the framework to address them.  Instead, the Court could simply clarify that the federal standard for summary judgment applies and, in the appropriate case, dispense with lower court doctrines that add hurdles for plaintiffs at the summary judgment stage.  Employment lawyers should keep an eye on future developments, as Justice Thomas’s concurrence in Ames suggests that at least two members of the Court will be interested in discussing the continued viability of the framework as a tool for proving employment discrimination cases.

[1]  Notably, the majority in Ames stated that it “assume[d]  without deciding” that the McDonnell Douglas framework applies at summary judgment.