Debate Over McDonnell Douglas Burden-Shifting Framework Continues as U.S. Supreme Court Again Declines Review

Takeaways

• SCOTUS denied two petitions for certiorari asking the Court to reexamine the McDonnell Douglas burden-shifting framework.
• These denials follow recent calls from Justices Thomas and Gorsuch, and a growing number of judges, to revisit McDonnell Douglas.
• For now, it remains the predominant framework when evaluating discrimination and retaliation claims at summary judgment, but an evolving legal landscape could result in more cases reaching a jury.

Related links

• Stephanie Adler-Paindiris Comments on the Future of the McDonnell Douglas Framework
• Stephanie Adler-Paindiris, Carolyn Burnette and Ana Shields Author ‘What To Know As Courts Rethink McDonnell-Douglas’
• U.S. Supreme Court Reverses ‘Reverse’ Employment Discrimination Pleading Standard

Article

On Oct. 5, 2026, the U.S. Supreme Court again declined to revisit the McDonnell Douglas burden-shifting framework frequently used to evaluate employment discrimination and retaliation claims.

The Court denied certiorari in Shelton v. Cuyahoga Metropolitan Housing Authority (No. 25-1354) and Laughlin v. Miami-Dade County (No. 25-1406). In Shelton, the petition for certiorari asked whether the Court should overrule McDonnell Douglas and whether the McDonnell Douglas burden-shifting framework requires a plaintiff to disprove the employer’s stated reason for the adverse employment action. In Laughlin, the question presented was whether federal courts may require a plaintiff to establish pretext to survive summary judgment on a discrimination claim.

These denials follow the refusal to grant certiorari earlier in 2026 in Licinio v. State of New York (No. 25A271).

How the Framework Works

Under the framework, first outlined by the Court in McDonnell Douglas Corp. v. Green, 411 U. S. 792 (1973), a plaintiff making a discrimination or retaliation claim must first establish a prima facie case. The burden then shifts to the defendant employer to provide a legitimate, non-discriminatory or non-retaliatory reason for the challenged adverse action. The plaintiff must then show that the employer’s reason is only a pretext for the alleged discrimination or retaliation.

Calls to Abandon the Framework

An increasing number of judges has joined in the call to abandon the framework, and some courts have moved away from the analysis at summary judgment.

Recent criticism has come from within the Court itself. In 2025, Justice Clarence Thomas, joined by Justice Neil Gorsuch, dissented from the denial of review in Hittle v. City of Stockton (No. 24–427), arguing that decisions around the country demonstrated McDonnell Douglas caused “widespread confusion” at the summary judgment stage and stating he would have granted certiorari to revisit the framework.

In a subsequent concurring opinion in Ames v. Ohio Department of Youth Services, 605 U.S. 303 (2025), again joined by Justice Gorsuch, Justice Thomas stated:

[T]he McDonnell Douglas framework lacks any basis in the text of Title VII [of the Civil Rights Act] and has proved difficult for courts to apply. In a case where the parties ask us to do so, I would be willing to consider whether the McDonnell Douglas framework is a workable and useful evidentiary tool…. In the meantime, litigants and lower courts are free to proceed without the McDonnell Douglas framework. This Court has never required anyone to use it. And, district courts are well equipped to resolve summary judgment motions without it.

The critique has been echoed by lower court judges. For example, in its Aug. 3, 2026, decision in Holloway v. Procter & Gamble Manufacturing Company, No. 25-30556, the U.S. Court of Appeals for the Fifth Circuit declined to abandon McDonnell Douglas due to circuit precedent and affirmed summary judgment for the employer; however, Judge James Ho authored a concurrence, joined by Chief Judge Jennifer Elrod, that plainly asserted McDonnell Douglas is “wrong. And in more ways than one.”

What Should Employers Do Now?

Although the Supreme Court may decide to revisit McDonnell Douglas in the future, more immediate changes are likely to come from lower courts. Employers with operations in multiple jurisdictions should be aware that the treatment of the framework may vary by circuit and by judge and should pay close attention to developments in courts, such as the Fifth Circuit, where judges have openly questioned the framework. Any shift away from McDonnell Douglas could impact litigation strategy, probability of going to trial, and litigation budgets, making continued monitoring of these developments important.

If you have any questions about these developments, or any other employment law issues, do not hesitate to contact Jackson Lewis attorneys.