Florida Bar Journal

McDonnell Douglas — The “Interloper” on the Ropes

For over 50 years, attorneys and judges have wrestled with the legal framework established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973), for analyzing employment discrimination claims under Title VII of the Civil Rights Act of 1964. That framework was designed to guide the adjudication of cases in which plaintiffs lacked direct evidence of discriminatory intent — a common scenario in modern employment disputes. Although once hailed for its simplicity and practicality, the McDonnell Douglas features have become flaws, leading to a widespread misunderstanding of the framework’s purpose and a call from members of the highest levels of the federal judiciary to do away with it.^[1]

The McDonnell Douglas framework emerged during a time of significant evolution in civil rights jurisprudence and quickly became the primary analytical framework for evaluating circumstantial evidence in employment discrimination claims at the summary judgment phase for Title VII cases.^[2] When McDonnell Douglas was decided, Title VII had only recently been enacted as part of the broader Civil Rights Act of 1964, and courts were still defining its contours.

The McDonnell Douglas Court’s decision created a three-step analytical process that has since become a staple of employment discrimination litigation: the plaintiff must first establish a prima facie case; the burden then shifts to the employer to articulate a legitimate, non-discriminatory reason for the adverse action; and finally, the plaintiff must demonstrate that the stated reason is pretextual.^[3]

Over time, however, what began as a flexible and practical evidentiary tool that could be used by plaintiffs to prove discrimination has ossified into a rigid procedural doctrine.^[4] As a result, plaintiffs seeking to prove discrimination have been forced to either complete the McDonnell Douglas gauntlet or have their claims summarily dismissed. Such was not the intent of the McDonnell Douglas Court.

Not only has the McDonnell Douglas framework been misapplied as a legal standard, in this author’s opinion, it may no longer be practical. The modern workplace presents challenges that the McDonnell Douglas framework was never designed to address. Discrimination exists in the modern workforce, but often manifests itself in subtle, systemic ways that do not fit neatly into the framework’s structured approach. Microaggressions, unconscious bias, and disparate impacts can all contribute to a discriminatory environment, yet may be difficult to prove using the formalistic steps laid out in McDonnell Douglas.

This article explores the evolution of the McDonnell Douglas framework, from its inception in 1973 to its contemporary application and ongoing critique. It examines recent decisions — such as Tynes v. Florida Department of Juvenile Justice, 88 F.4th 939 (11th Cir. 2023), and Hittle v. City of Stockton, 145 S. Ct. 759 (2025) — that reflect a growing judicial skepticism toward the framework’s continued dominance.

The McDonnell Douglas Framework: A Historical Overview

In McDonnell Douglas, the Supreme Court created a structured approach for plaintiffs to prove employment discrimination through circumstantial evidence — but it was not intended to be the only method of doing so.^[5] In fact, the framework was designed for use in a bench trial, and as a result, it does not precisely capture a plaintiff’s burden when facing a motion for summary judgment.^[6] Despite this fact, federal courts throughout the country have routinely applied the framework when deciding cases on summary judgment — forcing, rather than permitting, plaintiffs to navigate a labyrinth of “distinct doctrinal pigeonholes.”^[7]

To understand this labyrinth requires a careful study of the jurisprudence that has followed McDonnell Douglas. The framework primarily consists of three steps. First, the plaintiff must establish a prima facie case of discrimination. This may seem simple enough, but various courts have established varying methodologies for meeting this initial showing, which largely depend on the facts specific to the case.

For instance, when a plaintiff asserts that his or her employer did not promote him or her for discriminatory reasons, he or she must show a prima facie case by proving that: 1) he or she is a member of a protected group; 2) he or she was qualified for and applied for the promotion; 3) he or she was rejected in spite of his or her qualifications; and 4) the person who received the promotion was not a member of the plaintiff’s protected group.^[8]

On the other hand, a plaintiff who claims to have been discharged for discriminatory reasons makes out a prima facie case if he or she establishes that he or she was qualified for the job, but was fired and replaced by someone outside of his or her protected class.^[9] If no replacement has been hired, that same plaintiff could also make a prima facie showing by demonstrating that he or she was fired while other employees who are not in the plaintiff’s protected class, having comparable or lesser qualifications, were retained.^[10]
Regardless of the way in which the plaintiff establishes the initial prima facie showing, he or she creates an inference of discrimination by doing so, and the burden shifts to the defendant for the second step of the McDonnell Douglas analysis, which requires the defendant to articulate a legitimate, non-discriminatory reason for the allegedly discriminatory adverse employment action.^[11] The employer is not obligated to prove that its asserted reason was its true motivation, but instead, need only point to the existence of admissible evidence that raises a genuine issue of fact as to whether such a legitimate reason existed.^[12] Because it is a burden of production and not one of persuasion, that burden has been referred to as “exceedingly light.”^[13]

When the defendant meets its light burden of production by articulating such a non-discriminatory reason for its actions, “the inference of discrimination drops out of the case entirely, and the plaintiff has the opportunity to show by a preponderance of the evidence that the proffered reasons were pretextual.”^[14]

In the third step of the McDonnell Douglas framework, the final burden of proof placed on the plaintiff in a discrimination case is often the dispositive one at the summary judgment phase. For practitioners in this area of law, the vast majority of their time is spent in discovery ferreting out evidence of pretext. For judges, the question often comes down to whether the plaintiff has presented sufficient evidence of pretext that would allow a reasonable jury to conclude that the defendant’s decision was discriminatory.^[15]

As stated in Gogel v. Kia Motors Mfg. of Ga., Inc., 967 F.3d 1121, 1136 (11th Cir. 2020), the 11th Circuit has long held that, to prove pretext, “a plaintiff must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could find them unworthy of credence.” But the challenge for plaintiffs lies not only in disproving the employer’s rationale, but also in connecting the dots to demonstrate that unlawful discrimination filled the explanatory void. Courts frequently warn that they do “not sit as a super-personnel department,” second-guessing employment decisions. ^[16]

Discovery in cases evaluated under the McDonnell Douglas framework is, thus, laser-focused on identifying evidence that may support a finding of pretext. Emails, performance evaluations, personnel files, and internal investigation reports often become critical pieces of the evidentiary puzzle. Plaintiffs may attempt to show that they were treated differently from similarly situated employees,^[17] that the employer deviated from established policies,^[18] or that the rationale offered for the termination has changed over time^[19] — each of which can support an inference of pretext.

The summary judgment phase is especially crucial in employment litigation. Unlike other civil cases, employment discrimination claims are uniquely susceptible to dismissal at this stage due to the McDonnell Douglas framework. Courts regularly grant summary judgment based on a perceived lack of evidence of pretext, even in cases in which a jury might reasonably infer discriminatory animus from the totality of the circumstances.^[20]

Research into the statistic surrounding the adjudication of employment law cases reveals the long odds such cases have of surviving past the summary judgment phase of litigation under the current standards.^[21] While the McDonnell Douglas burden-shifting framework was intended to be one tool at a plaintiff’s disposal for proving discrimination in the workplace, it has morphed into a one-size-fits-all approach to reviewing evidence in such cases. That rigidity leaves little room for the factual and evidentiary nuances that may exist in each case, especially given our modern understanding of prejudice and discrimination.

In recent years, several courts have expressed concern that this framework has drifted from its original intent. What was designed as a heuristic tool to help courts analyze circumstantial evidence has become a rigid checklist that too often operates to the disadvantage of plaintiffs. Judges and scholars alike have observed that the framework’s focus on burden-shifting mechanics can distract from the central issue: whether the evidence, taken as a whole, supports an inference of unlawful discrimination. After all, the ultimate question in every employment discrimination case is not, as the Northern District of Alabama court explained in Turnage v. Wormuth, Civil Action No. 5:18-CV-02127-CLS, 2022 U.S. Dist. LEXIS 61519, at *12 (N.D. Ala. Apr. 1, 2022), “whether the plaintiff has established a prima facie case, or proved ‘pretext’ (i.e., demonstrated that the employer’s stated, allegedly nondiscriminatory reasons for the action are not worthy of belief).”

Instead, as the Supreme Court explained in United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 715 (1983), the ultimate issue is “whether the defendant intentionally discriminated against the plaintiff.” Judges at the highest levels of the federal judiciary seem poised to return McDonnell Douglas to its place as a useful tool for analyzing proof rather than a substitute for the text of the Civil Rights Act.^[22]

The rigid application of the McDonnell Douglas framework also prevents courts from taking into account modern understandings of bias in the workplace. Discrimination is no longer seen by many people solely as an intentional act. It can also be the product of institutional practices, unconscious attitudes, and structural inequalities. These subtler forms of bias may not produce the kind of evidence that fits neatly within the framework’s burden-shifting structure.

Consequently, plaintiffs will likely look beyond the McDonnell Douglas framework in favor of alternative evidentiary approaches. One such approach, discussed in greater detail below, is the “convincing mosaic” standard, which allows a plaintiff to demonstrate discrimination by pointing to various pieces of circumstantial evidence that collectively support an inference of bias. This method offers greater flexibility and has the potential to capture the nuances of a modern workplace.

As detailed in the following section, this very concern animated the 11th Circuit’s analysis in Tynes, where the court cautioned against using McDonnell Douglas as a substitute for a substantive inquiry into the truth of a plaintiff’s allegations. The opinion serves as a timely reminder that while evidentiary frameworks can assist judicial decisionmaking, they must not supplant the ultimate duty of courts to evaluate claims based on the totality of the evidence presented.

The Tynes Decision: A Shift in Judicial Perspective

In December 2023, the 11th Circuit issued a significant decision in Tynes, which may signal a broader shift in how courts apply the McDonnell Douglas framework.^[23] In that case, the plaintiff, a former superintendent of a detention center, alleged that her termination was motivated by discriminatory animus. After the jury returned a verdict in Tynes’ favor, the department filed a renewed motion for judgment as a matter of law, or alternatively, for a new trial claiming that the plaintiff did not establish a prima facie case of discrimination under McDonnell Douglas.^[24]

The panel’s opinion took pains to dispel what it called the “all-too-common confusion” surrounding the framework’s role in Title VII analysis.^[25] It explained that while McDonnell Douglas remains a viable method for analyzing circumstantial evidence, it is not the only means by which a plaintiff can establish discrimination.^[26] More importantly, the court reaffirmed that the ultimate question is whether illegal discrimination occurred — not whether the plaintiff successfully navigated the procedural checkpoints identified in McDonnell Douglas.[27]

As the Tynes court explained, much of the confusion surrounding the McDonnell Douglas framework can be traced back to the Supreme Court’s use of the phrase “prima facie case” in McDonnell Douglas to describe the plaintiff’s initial showing.^[28] “When the Supreme Court uses the term ‘prima facie case’ in this context, it does so ‘in a special sense.’”^[29] The Tynes court went on to cite the U.S. Supreme Court’s effort to clarify its use of the phrase “prima facie” to mean “the establishment of a legally mandatory, rebuttable presumption.”^[30] In other words, a plaintiff is not required to meet the prima facie elements articulated in McDonnell Douglas to establish a prima facie case of discrimination. Instead, meeting the prima facie elements in McDonnell Douglas is merely the first step when using that framework to prove employment discrimination.

The Tynes court made clear that the “convincing mosaic” and McDonnell Douglas frameworks are not mutually exclusive. Rather, both are tools that courts may use to evaluate circumstantial evidence, depending on the nature of the facts presented.^[31] This flexibility allows courts to adapt their analysis to the unique circumstances of each case, rather than forcing litigants into an artificial structure that may not reflect the true dynamics of the facts at play.

Judge Kevin Newsom, in a powerful concurring opinion, went further than the Tynes majority. He candidly acknowledged his prior tendency to treat McDonnell Douglas as a doctrinal restraint and urged a rethinking of its role in modern employment law. Describing the McDonnell Douglas framework as one that obscures more than it reveals, Judge Newsom advocated for a return to basic summary judgment principles.^[32] In his view, the decisive question at the summary judgment stage should be whether the plaintiff has presented sufficient evidence for a reasonable jury to conclude that the employer engaged in intentional discrimination. “That, of course, is the Rule 56 question — shorn of all its McDonnell Douglas prophylaxis.”^[33]

Tynes has already been cited in subsequent cases within the 11th Circuit as a reminder that summary judgment should not be granted simply because a plaintiff fails to perfectly satisfy each element of the burden-shifting framework.^[34] Instead, courts must evaluate the full evidentiary picture and ask whether, in light of all the facts, a jury could reasonably find that unlawful discrimination occurred. This more balanced approach is rooted in both common sense and the text of Title VII.

The Hittle Case: The Supreme Court’s Stance

While Tynes reflects the evolving perspective of a federal appellate court, the Supreme Court’s treatment of the McDonnell Douglas framework in Hittle reveals the complexity — and at times, the reluctance — of the highest court to intervene in the ongoing debate.^[35] Hittle involved a religious discrimination claim brought by Eric Hittle, the former fire chief of Stockton, California.^[36]

While the Ninth Circuit correctly stated that a plaintiff “does not need to use the McDonnell Douglas framework to establish a prima facie case” it went on to state that, even if the plaintiff chooses to not use McDonnell Douglas, the employee must demonstrate that the proffered non-discriminatory reason for the adverse action was pretext for discrimination.^[37] Pretext, however, is an element of the McDonnell Douglas framework. The Ninth Circuit’s use of the McDonnell Douglas element, even if Hittle sought to prove discrimination through alternative means, underscores the permeating nature of McDonnell Douglas. Indeed, the 11th Circuit has historically required plaintiffs to prove pretext even when seeking to prove a “convincing mosaic” of discrimination.^[38]

On March 10, 2025, the U.S. Supreme Court declined to review the Hittle case, with Justices Thomas and Gorsuch dissenting.^[39] Justice Thomas narrowed in on the district and circuit courts’ reliance on the pretext prong of the McDonnell Douglas test to express his desire to revisit the ruling in McDonnell Douglas and clarify the misapprehension that a plaintiff need present anything more than evidence to allow a reasonable factfinder to find a Title VII violation in order to survive a motion for summary judgment.^[40]

Justice Thomas took the opportunity to survey the wide-spread criticism of the Court’s McDonnell Douglas framework and “the chaos sown” by the framework, going so far as to say that “[t]he Court made no attempt to ground [the McDonnell Douglas] framework in the text of Title VII or any other source of law. The Court appears to have made it out of whole cloth.”^[41]
Justice Thomas’ dissenting opinion makes plain that lower courts are missing the mark when they use McDonnell Douglas as a substantive legal standard, and described the framework as “necessarily underinclusive.”^[42] Instead, he concludes, the framework provides criteria that, if satisfied, will allow a plaintiff to prevail in a discrimination claim, but that criteria is “not the only way or even the best way to prove a claim.”^[43] Indeed, as Justice Thomas points out in his dissenting opinion, the McDonnell Douglas Court itself explained that “[t]he facts necessarily will vary in Title VII cases” and the prima facie proof required in one case “is not necessarily applicable in every respect to differing factual situations.”^[44]
Turning to the facts of Hittle, Justice Thomas explained that the plaintiff presented “ample evidence of discriminatory intent on the part of those who decided to terminate him.”^[45] Justice Thomas disagreed with the Ninth Circuit’s determination, and noted the evidence presented in Hittle was “more than likely sufficient for Hittle to establish a genuine dispute of material fact as required by Rule 56.”^[46]

Although the Supreme Court declined to hear the case, the dissent from denial signals a willingness by some members of the Supreme Court to revisit the foundational doctrines of employment discrimination law. It also suggests that future challenges to the McDonnell Douglas framework — particularly those that come with a well-developed record and clear legal questions — may be more successful in obtaining certiorari.

For practitioners, Hittle serves as both a cautionary tale and a beacon of potential reform. It illustrates how mechanical applications of the McDonnell Douglas test can result in the premature dismissal of meritorious claims, especially when courts fail to consider broader patterns of circumstantial evidence. At the same time, the decision reminds litigants that even at the Supreme Court level, there is active debate about the proper role of evidentiary frameworks in discrimination litigation.

The dialogue between Tynes and Hittle — between a circuit court embracing flexibility and Supreme Court justices calling for doctrinal reevaluation — suggests that the law in this area remains in flux. Whether McDonnell Douglas endures, evolves, or is ultimately retired, will likely depend on how lower courts respond to these signals and how future cases frame the question for high court review.

Pre-publication Update: On June 5, 2025, Justice Thomas authored a concurring opinion in the case of Ames v. Ohio Dep’t of Youth Servs., No. 23-1039, 2025 U.S. LEXIS 2198, at *19 (June 5, 2025), in which he criticized the majority opinion for “assum[ing] without deciding that the McDonnell Douglas framework is an appropriate tool for making [a summary judgment] determination.” The concurring opinion provides yet another example of how the framework’s effectiveness has come under attack and contains an invitation for litigants to bring a case to the court where the framework’s legitimacy at the summary judgment phase is squarely at issue.^[47]

Implications for Employment Discrimination Litigation

The growing scrutiny of the McDonnell Douglas framework and its mechanical application carries substantial implications for how employment discrimination cases are litigated, defended, and adjudicated. If courts embrace the flexibility promoted in Tynes and the skepticism articulated in Hittle, it could fundamentally reshape how attorneys approach these cases at every stage — from filing the complaint to summary judgment to trial strategy.

• Plaintiff-Side Strategy: Reclaiming Narrative Flexibility — For plaintiffs’ attorneys, the gradual move away from strict adherence to McDonnell Douglas offers an opportunity to present a more complete and compelling narrative of workplace bias. One of the major difficulties faced by plaintiffs under the traditional framework has been the mechanical approach to the burden-shifting steps. Within this framework, cases are often analyzed and dismissed based on a narrow application of the burden-shifting standards. But evidence should not be evaluated on such a piecemeal basis — it should be viewed in its context and evaluated in its totality as a “convincing mosaic.”^[48]

The increasing judicial recognition of the superiority of the “convincing mosaic” standard, as evidenced by Judge Newsom’s concurring opinion in Tynes and Justice Thomas’ dissenting opinion in Hittle, allows plaintiffs to argue their case using the full factual landscape. Instead of being confined to a rigid framework that consists of a series of procedural boxes that must be checked before a plaintiff can move to the next phase of the analysis, attorneys can craft a story based on patterns of conduct, evolving justifications, disparities in treatment, or broader organizational dynamics. This approach also has the potential to facilitate the inclusion of modern forms of evidence like implicit bias, social media activity, or microaggressions in the workplace.

• Defense Strategy: Enhancing Documentation and Internal Consistency — For employers and their counsel, the implications are equally profound. If courts move away from relying exclusively on the McDonnell Douglas checklist to dispose of claims, defendants can no longer simply rely on the articulation of an allegedly non-discriminatory reason for their actions to have plaintiffs’ cases dismissed. Instead, employers must be prepared to address and counter the entirety of the mosaic of discrimination painted by their employees.

From a litigation perspective, defense counsel must prepare for a landscape in which courts are more willing to permit cases to proceed to trial. Without the security of a rigid McDonnell Douglas framework, and the historic gatekeeping role it has played in preventing such cases from proceeding to trial, defense attorneys must be prepared to litigate more discrimination cases.

• Judicial Role: A Holistic Model of Adjudication — The shifting treatment of McDonnell Douglas also signals an evolving role for the judiciary. In employment discrimination cases, judges have historically acted as early gatekeepers, using the burden-shifting framework to streamline litigation and reject meritless claims. While efficiency is a legitimate judicial goal, it cannot come at the expense of not permitting cases to proceed to trial when they present a triable issue of fact that may not meet the rigorous McDonnell Douglas framework.

As cases like Tynes and Hittle illustrate, courts are increasingly being called upon to engage in deeper, more context-rich analyses. Judges may find themselves less bound by procedural formality and more focused on whether the evidence as a whole supports an inference of discrimination. This approach is more detailed and onerous on the judiciary, but it is consistent with the summary judgment standard used in most other civil cases and honors the principle that genuine disputes of material fact should be resolved by juries.

Conclusion

The McDonnell Douglas framework has played a foundational role in employment discrimination litigation for over half a century. It was designed to assist courts in analyzing circumstantial evidence and to provide a roadmap for plaintiffs who lacked direct proof of discriminatory intent. For many years, it served that purpose effectively, giving structure to what might otherwise have been a chaotic area of civil rights law. But rigid reliance on a three-step burden-shifting formula that is not rooted in the text of Title VII can lead to unjust outcomes. What began as a helpful evidentiary tool has become a doctrinal trapdoor that may shut out otherwise valid claims.

The decisions in Tynes and Hittle reveal a judiciary at a crossroads. On the one hand, appellate courts like the 11th Circuit are sounding the alarm that McDonnell Douglas must not overshadow the fundamental question in Title VII litigation: whether unlawful discrimination occurred. On the other hand, the Supreme Court’s reluctance to address the problem head on — despite a pointed dissenting opinion from Justice Clarence Thomas — demonstrates the institutional caution with which legal standards are treated.

Going forward, courts have an opportunity — and perhaps an obligation — to recalibrate how they use the McDonnell Douglas framework. Rather than treating it as a rigid gatekeeping device, they can restore it to its original purpose: one of many useful tools for evaluating circumstantial evidence and not a litmus test for legal sufficiency. Alternative approaches, such as the “convincing mosaic” standard or direct application of Rule 56 summary judgment principles, provide valuable flexibility in ensuring that claims are adjudicated in a fair and appropriate fashion.

This column is submitted on behalf of the Labor and Employment Law Section, Yvette D. Everhart, chair, and Alicia Koepke, editor.