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Every employment attorney knows the McDonnell Douglas doctrine because, at summary judgment, it is the linchpin through which an employment discrimination lawsuit either proceeds or comes to a halt. In fact, the doctrine is likely one of the first standards a young employment attorney learns. Yet the 50-year-old case has a growing number of critics. Some of those critics want to forget about the doctrine — like a castaway stranded on a deserted island.
What are critics saying?
Recent criticism about the McDonnell Douglas doctrine came from U.S. Supreme Court Justices Clarence Thomas and Neil Gorsuch in March 2025. Justice Thomas — who wrote the dissenting opinion in the denial of the writ in Ronald Hittle v. City of Stockton, California, et al. — spent nine pages detailing how the doctrine was "initially developed for use in a bench trial," but "has since become the presumptive means of resolving Title VII cases at summary judgment." He then questioned whether the doctrine's "use at summary judgment comports with Rule 56" and ended by stating he "would have taken this opportunity to revisit McDonnell Douglas and decide whether its burden-shifting framework remains a workable and useful evidentiary tool."
What does this mean for employers?
If criticism of the doctrine continues to grow, plaintiffs' attorneys will likely argue the doctrine runs afoul of the standard for dispositive motions.
What has happened since Justice Thomas' dissent?
Despite Justice Thomas' remarks, the U.S. Supreme Court recently declined to take up a case for which the entire premise was whether the doctrine should be overruled — on Jan. 12, 2026. The Supreme Court handed down its order list showing the writ in Julio Lincinio v. the State of New York, et al. was denied. Thus, the doctrine lives on.
What about the future?
While it is unlikely any changes will occur for some time — if ever — it is best to ensure employers follow best practices, such as having policies up-to-date, conducting thorough workplace investigations when discrimination claims are made, implementing uniform policies for all employees, etc. This will increase their chances for success in employment litigation — regardless of what standard is in effect . . . or cast away on a deserted island.
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