In this provocative article, Bill Corbett traces recent developments in Title VII employment discrimination law by analyzing two Supreme Court decisions, Ames v. Ohio Department of Youth Services, 605 U.S. 303 (2025), and Muldrow v. City of St. Louis, 601 U.S. 346 (2024), as well as how textualism has imperiled the McDonnell Douglas doctrine. (Courts have used this three-part burden-shifting framework to decide the issue of discrimination under various statutes since the early 1970’s. The McDonnell Douglas doctrine puts the burden on the plaintiff to create an inference of discrimination, then permits the defendant to offer a legitimate, nondiscriminatory reason for its action. The plaintiff shoulders the ultimate burden of persuasion by proving pretext, and thus, the ultimate fact of the discrimination.) Corbett concludes that an “escalating textualist purge of employment discrimination law is fashioning a body of law that differs significantly from the one that has developed over six decades.” (P. 37.) He predicts that, as a result, courts will be less likely to grant employer-defendants’ motions for summary judgment on plaintiffs’ Title VII claims.
In his analysis, Corbett reads Muldrow as a case in which the Court deploys textualism to eschew “heightened standards for actionable adverse employment actions,” and Ames as further confirming that Title VII exists to protect individuals and not groups. (P. 36.) From this, he infers Muldrow and Ames will cause more Title VII cases to make it to trial, and more filing of discrimination claims, especially so-called “reverse discrimination” claims.
Corbett then points to Justice Thomas’s concurrence in Ames as a specific sign of “the most dramatic pro-employee plaintiff shift yet, with roots in a textualist approach.” In a section of the article entitled “Is McDonnell Douglas next,” Corbett questions whether this concurrence, as well as Justice Thomas’s dissent from the cert. denial in Hittle v. City of Stockton, 145 S. Ct. 759 (2025), foretell that doctrine’s demise. These opinions highlight the framework’s lack of a basis in Title VII’s statutory text, how cumbersome it has been for courts to apply, and Justice Thomas’s and possibly others’ appetite for revisiting it.
Corbett reads Justice Thomas as criticizing the McDonnell Douglas framework as ill-suited for deciding summary judgment claims and not capturing the multitude of ways that a Title VII plaintiff can show discrimination against an individual “because of such individual’s” protected class status. In so doing, Corbett explains how he agrees and disagrees with Justice Thomas. Although the Supreme Court never has, lower courts often apply the McDonnell Douglas framework “to the sufficiency standard for summary judgment.” (P. 49.) Corbett sees no “fatal flaw of inconsistency with the summary judgment standard,” as Thomas does, yet he agrees with Thomas that courts apply McDonnell Douglas in a heavy-handed manner that asks too much of plaintiffs. (Pp. 50-51.) But Corbett, unlike Justice Thomas and others, does not appear to see the potential rollback of the framework as an issue couched so much in textualism as in its failure to comport with the correct analysis of the ultimate question in Title VII cases: Did discrimination occur “because of” a plaintiff’s race, sex, or another protected category? For similar discussion, see Tynes v. Florida Dep’t of Juvenile Justice, 88 F.4th 939, 949-958 (11th Cir. 2023) (Newsom, J., concurring).
What happens if McDonnell Douglas is overruled? Corbett predicts that courts would return to applying the actual summary judgment standard — whether there is no genuine dispute of material fact on whether the defendant likely acted “because of” an individual’s protected category in violation of Title VII, section 703(a), or on whether it was at least a “motivating factor”. As a result, more Title VII claims would survive past summary judgment. Interestingly, though, Corbett notes that even if the Court were to liberate the summary judgment analysis from McDonnell Douglas, it would not help plaintiffs’ claims under employment discrimination law outside of Title VII, because those plaintiffs would still need to “satisfy the more demanding standard of but-for causation,” though those plaintiffs would nonetheless still “benefit from not being required to fit their evidence into the prima facie case and pretext stages of McDonnell Douglas.” (Pp. 53-54.)
Finally, Corbett asks “[W]hat else might a textualist Supreme Court strip away?” He points to other “atextual” readings of Title VII, including the doctrine for employer liability for supervisor workplace harassment, and well as, in the lower courts, the stray remarks doctrine, the same-actor inference, and the same-class inference. He makes excellent points about how these judge-made doctrines are inconsistent with Title VII’s text and purposes. All in all, this is a provocative read about the result of textualists’ approach to ridding the law of unhelpful doctrines.
