McDonnell Douglas: The End Is Near? by Andrew H. Friedman
California Labor & Employment Law Review Publishes Cover Article By Andrew H. Friedman
September 1, 2025 – Helmer Friedman LLP is pleased to announce that the California Labor & Employment Law Review has just published Andrew H. Friedman’s article – MCDONNELL DOUGLAS: THE END IS NEAR? – as the cover article for its September 2025 issue. Sadly, the McDonnell Douglas burden-shifting test, which was originally established to help plaintiff employees prove discrimination, has increasingly become an employer’s best friend enabling them to obtain summary judgment in so many clearly meritorious cases that even the conservative Justices believe that the time has come to end or, at least, curtail its use at summary judgment.This article explores the increasingly ostentatious charge by a duo of uber conservative Justices – Clarence Thomas and Neil M. Gorsuch – to reverse or dramatically curtail the use of the tripartite burden-shifting test first announced by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), for the most unlikely of reasons. Justices Thomas and Gorsuch contend that the McDonnell Douglas test is too employer-friendly because it not only “requires a plaintiff to prove too much at summary judgment” but also that it “fails to encompass the various ways in which a plaintiff could prove his claim.” In their dissent in Hittle v. City of Stockton, California, 145 S.Ct. 759, 759-764 (2025) (J. Thomas and J. Gorsuch, dissenting) and their concurrence in Ames v. Ohio Department of Youth Services, 145 S.Ct. 1540, 1548-1555 (2025)(J. Thomas and J. Gorsuch, concurring), Justices Thomas and Gorsuch also criticize the use of McDonnell Douglas on motions for summary judgment for a whole host of additional reasons:
- McDonnell Douglas is not grounded in the text of Title VII or any other source of law – rather, it is a judicially manufactured doctrine and, as such, generates complexity and confusion which cause erroneous results.
- McDonnell Douglas is incompatible with the summary-judgment standard set forth in Federal Rule of Civil Procedure 56.
- McDonnell Douglas requires courts to draw and maintain artificial distinctions between direct and circumstantial evidence.
Commenting on the publication of his article, Mr. Friedman said: “Sadly, the McDonnell Douglas burden-shifting test, which was originally established to help plaintiff employees prove discrimination, has increasingly become an employer’s best friend enabling them to obtain summary judgment in so many clearly meritorious cases that even the conservative Justices believe that the time has come to end or, at least, curtail its use at summary judgment.”
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