Last month, the U.S. Supreme Court declined to visit the legal soundness of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), a seminal decision that has outlined the burdens of proof in employment discrimination cases, particularly in the context of indirect evidence, for the past fifty years.[1] This post briefly reviews the Court’s recent refusal to change the McDonnell Douglas framework. 

McDonnell Douglas requires a plaintiff to show a prima facie case of unlawful discrimination, which generally requires: (1) membership in a protected class; (2) a plaintiff being qualified for the position in question; (3) an adverse employment action; and (4) minimal support that the employer was motivated by discriminatory animus, such as a position being filled by an individual outside the protected class of the plaintiff.  After this showing, a defendant employer can defend by showing that they possessed a “legitimate, nondiscriminatory reason” for its adverse action, and the plaintiff may respond by showing that the “legitimate, nondiscriminatory reason” was pretext for discriminatory animus.        

In Licinio v. New York, Case No. 25-587, a plaintiff was hired to be the Dean of the College of Medicine at the State University of New York in Syracuse, New York (“SUNY Upstate”), serving in that position from approximately 2017 to 2019.  In 2019, he was removed from his position as Dean, but he was permitted to retain his position as a tenured profession with an accompanying salary reduction.  The plaintiff elected to pursue relief in federal court under Title VII of the Civil Rights Act of 1964 (“Title VII”) against New York, the State University of New York, and SUNY Upstate (collectively, “the New York defendants”).  Applying the well-known burden shifting framework of McDonnell Douglas, the district court dismissed the plaintiff’s discrimination and retaliation claims under Title VII.  The United States Court of Appeals for the Second Circuit affirmed and did so applying McDonnell Douglas. 

The plaintiff petitioned the U.S. Supreme Court to overrule McDonnell Douglas.[2]  He primarily argued that McDonnell Douglas was unworkable and contrary to the text of Title VII.  He also took time to highlight the judicial criticisms leveled at McDonnell Douglas by members of the Court, including Justices Thomas and Gorsuch, and numerous lower court judges in various appellate courts.  Despite the plaintiff’s attacks on McDonnell Douglas, the Court did not require the New York defendants to respond to the plaintiff’s petition, and it denied the plaintiff’s petition on January 12, 2026.

Although the U.S. Supreme Court may not currently have the appetite to consider wide-spread changes to workplace anti-discrimination laws this term, the Court’s decision in Ames v. Ohio Department of Youth Services, 605 U.S. 303 (2025), which overturned the “background circumstances” doctrine for majority group plaintiffs, shows the Court’s willingness to scrutinize judge-made laws that may not necessarily stem from the text of Title VII.  As such, the Court might be willing to visit the McDonnell Douglas framework in the right case and under the right circumstances.  Even though there are no immediate changes impacting federal workplace litigation, employers should continue to monitor this potential sea change.  If there are any questions concerning a defense to a Title VII matter, please contact a member of the Nelson Mullins Labor and Employment Group.