On Monday, the Supreme Court declined to take up a religious employment discrimination case asking the Court to revisit a judge-made legal doctrine that has confused and complicated employment law for decades.
McDonnell Douglas v. Green is a case from 1973 that began with the best of intentions. The Supreme Court at the time was concerned that people who faced discrimination at work because of their race may not have access to direct evidence of discrimination. After all, not many employers admit when they fire someone because of racism. Trying to help workers in this situation, the Supreme Court offered up a roadmap suggesting that plaintiffs could prove discrimination using indirect evidence. It created a multi-part burden-shifting framework for evaluating such evidence. In short, the McDonnell Douglas framework focused on whether an employee can show that the employer’s proffered reason for the adverse action is instead really a pretextual cover for discrimination.
Over the years, courts and litigants have warped the test, turning it into a confusing mess, filled with multiple subparts and formulaic boxes to check. The test is profoundly complicated, taking up unnecessary resources of courts and litigants to address each of the multiple subparts and offshoots.
Some examples. Should a particular piece of evidence be considered “direct” evidence or should it be classified as “circumstantial” evidence? Are two employees who committed the same policy violation but who received different levels of discipline similar enough to be considered “similarly situated comparators” even if they have different supervisors?
All this has led to court and litigants wasting their time (and countless reams of paper) with judicially-created tangents — ignoring the real question that should be before the court.
All federal civil cases are supposed to go to a jury trial when there are material factual questions about what happened, under Federal Rule of Civil Procedure 56. If, considering all the circumstances, a reasonable jury could find that unlawful discrimination happened, then the case should go to trial. That’s it. Well, it should be as simple as that.
This week, two U.S. Supreme Court Justices took aim at correcting this area of law.
The Supreme Court declined to take a religious discrimination case brought by my firm, First Liberty Institute, on behalf of a former Fire Chief Ron Hittle, arguing that the McDonnell Douglas framework should be revisited. Justices Thomas and Gorsuch dissented from denial of certiorari, arguing that the Court should have taken the case.
The dissent explained that the McDonnell Douglas framework has caused “widespread confusion” and led to “troubling outcomes on the ground.” Justice Thomas wrote, “I am not aware of many precedents that have caused more confusion than this one.”
The dissent details how the framework was created by the Supreme Court “out of whole cloth” when all Title VII cases were decided by judges in bench trials rather than by juries, as they are today. The framework has caused lower courts to distort the proper analysis at the summary judgment stage and has been widely criticized.
It is past time for the Supreme Court to fix this mess.
Many of the Justices on today’s Supreme Court have shown that they are not afraid to correct longstanding errors. Many of these errors derive from the 1970s era of the Court when judicial activism was in vogue.
For years, the Lemon test from 1971 was considered an untouchable bedrock of the Establishment Clause. Yet, after chipping away in cases such as American Legion v. American Humanist Association (2019), the Supreme Court finally buried the Lemon test once and for all in Kennedy v. Bremerton School District (2022).
Many such cases have been on the chopping block: Dobbs v. Jackson Women's Health Organization (2022) overturned Roe v. Wade (1973) on the issue of abortion. Groff v. DeJoy (2023) gutted TWA v. Hardison (1977) to restore religious accommodation rights at work.
My firm, First Liberty Institute, exclusively focuses on defending religious liberty. We brought the Hittle case to the Supreme Court because correcting this area of law is particularly important for protecting religious liberty at work.
Today, sometimes employers do admit that they fire their employees because of their religious beliefs or practices. Employees sometimes are fired for their offensive religious beliefs (such as the religious belief in male and female) or for practices that employers may find inconvenient (such as needing prayer breaks). In these cases, the McDonnell Douglas framework is particularly unhelpful and can lead to unjust outcomes, like denying these employees their day in court.
Cleaning up this area of law will help not only the efficient process of courts, but it will also help ensure that employment discrimination law claims are evaluated fairly for everyone, including for those who face religious discrimination at work.