SUPREME COURT OF THE UNITED STATES
_________________
No. 23–1039
_________________
MARLEAN A. AMES, PETITIONER
v. OHIO
DEPARTMENT OF YOUTH SERVICES
on writ of certiorari to the united states
court of appeals for the sixth circuit
[June 5, 2025]
Justice Thomas, with whom Justice Gorsuch
joins, concurring.
I join the Court’s opinion in full. I write
separately to highlight the problems that arise when judges create
atextual legal rules and frameworks. Judge-made doctrines have a
tendency to distort the underlying statutory text, impose
unnecessary burdens on litigants, and cause confusion for courts.
The “background circumstances” rule—correctly rejected by the Court
today—is one example of this phenomenon. And, the decision below
involves another example: The Sixth Circuit analyzed Ames’s Title
VII claim under the three-step framework developed by this Court in
McDonnell Douglas Corp. v.
Green,
411 U.S.
792 (1973). As with the “background circumstances” rule, the
McDonnell Douglas framework lacks any basis in the text of
Title VII and has proved difficult for courts to apply. In a case
where the parties ask us to do so, I would be willing to consider
whether the
McDonnell Douglas framework is a workable and
useful evidentiary tool.
I
The Sixth Circuit’s “background circumstances”
rule imposes a heightened burden on Title VII plaintiffs who belong
to so-called “majority groups.” See 87 F. 4th 822, 825 (2023).
The rule requires a majority-group plaintiff to prove, in addition
to the standard elements of a Title VII claim, that background
circumstances “ ‘support the suspicion that the defendant is
that unusual employer who discriminates against the
majority.’ ”
Ibid. This additional requirement is a
paradigmatic example of how judge-made doctrines can distort the
underlying statutory text.
As the Court’s opinion explains, the “background
circumstances” rule lacks any basis in the text of Title VII.
Ante, at 6. Title VII bars employment discrimination against
“any individual” “because of such individual’s race, color,
religion, sex, or national origin.” 42 U. S. C.
§2000e–2(a)(1). “Thus, to state the obvious, the statute bars
discrimination against ‘any individual’ on the grounds specified
therein.” 87 F. 4th, at 827 (Kethledge, J., concurring). The
“background circumstances” rule plainly contravenes that statutory
command by imposing a higher burden on some individuals based
solely on their membership in a particular demographic
group.[
1]
This rule is a product of improper judicial
lawmaking. See
Stewart Organization, Inc. v.
Ricoh
Corp.,
487 U.S.
22, 38 (1988) (Scalia, J., dissenting) (“[W]hile interpreting
and applying substantive law is the essence of the ‘judicial Power’
created under Article III of the Constitution, that power does not
encompass the making of substantive law”). The rule was created by
D. C. Circuit judges in
Parker v.
Baltimore & Ohio R.
Co., 652 F.2d 1012 (1981). Applying their own “common sense,”
these judges determined that extra evidence is required to prove
discrimination when a Title VII plaintiff is white.
Id., at
1017. In support of this proposition, the court cited only its
mistaken understanding of the
McDonnell Douglas framework,
another judge-made construct, see Part II,
infra. 652
F. 2d, at 1017
. At no point in its development of this
new rule did the court refer to the text of Title VII.
The “background circumstances” rule also
highlights how judge-made doctrines can be difficult for courts to
apply. Because courts lack an underlying legal authority on which
to ground their analysis, there is no principled way to resolve
doctrinal ambiguities. The “background circumstances” rule suffers
from this flaw. A number of courts have described the rule as
“vague and ill-defined.”
E.g.,
Iadimarco v.
Runyon,
190 F.3d 151, 161 (CA3 1999); see also
Stock v.
Universal Foods Corp.,
817 F. Supp. 1300, 1306 (Md 1993) (describing the rule as
“vague and difficult to apply”). Most notably, the “background
circumstances” rule requires courts to perform the difficult—if not
impossible—task of deciding whether a particular plaintiff
qualifies as a member of the so-called “majority.” See
Smyer
v.
Kroger Ltd. Partnership 1, 2024 WL 1007116, *7 (CA6, Mar.
8, 2024) (Boggs, J., concurring) (explaining that we live “[i]n a
world where it has become increasingly difficult to determine who
belongs in the majority”).
How a court defines the boundaries of a
population can affect whether a particular person falls into a
majority or minority group. Women, for example, make up the
majority in the United States as a whole, but not in some States
and counties. See Dept. of Commerce, Census Bureau, L. Blakeslee,
Z. Caplan, J. Meyer, M. Rabe, & A. Roberts, Age and Sex
Composition: 2020, pp. 2, 8, 14–15 (C2020BR–06, 2023) (Census
Bureau). Similarly, women make up the majority of employees in
certain industries, such as teaching and nursing, but the minority
in other industries, such as construction. Brief for America First
Legal Foundation as
Amicus Curiae 13 (citing Dept. of Labor,
Occupations With the Largest Share of Women Workers (Apr. 2025),
https://
www.dol.gov/agencies/wb/data/occupations/largest-share-women-workers;
Dept. of Labor, Occupations With the Smallest Share of Women
Workers (Apr. 2025), https://www
.dol.gov/agencies/wb/data/occupations/occupations-smallest-
share-women-workers).
Defining the “majority” is even more difficult
in the context of race, as racial categories tend to be “overbroad”
and “imprecise in many ways.”
Students for Fair Admissions,
Inc. v.
President and Fellows of Harvard College, 600
U.S. 181, 216 (2023).[
2]
“American families have become increasingly multicultural,” and
“attempts to divide us all up into a handful of groups have become
only more incoherent with time.”
Id., at 293 (Gorsuch, J.,
concurring). And, even if courts could identify all the relevant
racial groups and their boundaries, courts would still struggle to
determine which racial groups make up a majority. Black employees
in Detroit, for example, make up a majority in their city, but not
in Michigan or the United States at large. See Census Bureau, Quick
Facts: Detroit City, Michigan (July 2024),
https://www.census.gov/quickfacts/
fact/table/detroitcitymichigan/PST045224; Census Bureau, Quick
Facts: Michigan (July 2024), https://www.census
.gov/quickfacts/fact/table/MI/PST045224.
Similar problems arise with religion. As with
sex and race, a particular religion could make up the majority or
the minority, depending on how the population is defined. And, in
the context of religion, the “background circumstances” rule
requires courts to decide both the plaintiff ’s religion and
how the plaintiff ’s religion compares with the religion of
everyone else in the relevant population. Those tasks are
formidable, as Americans hold a wide range of religious beliefs, as
well as a wide range of views about the proper way to categorize
other religions. Americans have different views, for example, on
whether Catholics are Christians. The “judicial process is
singularly ill equipped to resolve” these kinds of faith-based
“differences.”
Thomas v.
Review Bd. of Ind. Employment
Security Div.,
450 U.S.
707, 715 (1981); see also
Our Lady of Guadalupe School
v.
Morrissey-Berru, 591 U.S. 732, 761 (2020) (“[D]etermining
whether a person is a ‘co-religionist’ will not always be
easy”).
Courts that have adopted the “background
circumstances” rule have offered no guidance on how to decide
whether a particular person is a member of the “majority.” See
Bishopp v.
District of Columbia, 788 F.2d 781, 786,
n. 5 (CADC 1986) (“[N]either this court nor the Supreme Court
has squarely addressed the issue whether minority status for
purposes of a prima facie case could have a regional or local
meaning”). Instead, judges have been left to their own devices to
make these challenging determinations.
Most courts appear to have sidestepped these
difficulties by abandoning the search for neutral principles and
instead assuming that the “background circumstances” rule applies
only to white and male plaintiffs. The Tenth Circuit, for example,
assumed that the rule applies to “white plaintiff[s]” on the ground
that white individuals are “members of a historically favored
group.”
Taken v.
Oklahoma Corp. Comm’n,
125 F.3d 1366, 1369 (1997). Similarly, the D. C. Circuit
applied the rule to a white plaintiff while acknowledging that
“[o]f course whites are in the minority in the District of
Columbia.”
Bishopp, 788 F. 2d, at 786, and n. 5.
In other words, courts with this rule have enshrined into Title
VII’s antidiscrimination law an explicitly race-based preference:
White plaintiffs must prove the existence of background
circumstances, while nonwhite plaintiffs need not do so. Such a
rule is undoubtedly contrary to Title VII, and likely violates the
Constitution, under which “there can be no such thing as either a
creditor or a debtor race.”
Adarand Constructors, Inc. v.
Peña,
515 U.S.
200, 239 (1995) (Scalia, J., concurring in part and concurring
in judgment); see n. 1,
supra.
Thankfully, today’s decision obviates the need
for courts to engage in the “sordid business” of “divvying us up by
race” or any other protected trait.
League of United Latin
American Citizens v.
Perry,
548
U.S. 399, 511 (2006) (Roberts, C. J., concurring in part,
concurring in judgment in part, and dissenting in part). I simply
observe that the “background circumstances” rule is emblematic of
the serious challenges that can arise when judges invent atextual
requirements.[
3] For too long,
that rule put “a deep scratch across [the] surface” of Title VII.
87 F. 4th, at 827 (Kethledge, J., concurring). I am pleased
that the Court rejects it in full today.
II
This case involves a second judge-made rule.
Relying on Circuit precedent, the Sixth Circuit applied the
three-step framework developed by this Court in
McDonnell
Douglas to determine whether Ames’s Title VII claim should
survive summary judgment. The Court today assumes without deciding
that the
McDonnell Douglas framework is an appropriate tool
for making that determination.
Ante, at 4, n. 2. But,
the judge-made
McDonnell Douglas framework has no basis in
the text of Title VII. And, as I have previously explained, lower
courts’ extension of this doctrine into the summary-judgment
context has caused “significant confusion” and “troubling outcomes
on the ground.”
Hittle v.
City of Stockton, 604
U. S. ___, ___–___ (2025) (opinion dissenting from denial of
certiorari) (slip op., at 3–4). In an appropriate case, this Court
should consider whether the
McDonnell Douglas framework is
an appropriate tool to evaluate Title VII claims at summary
judgment.
A
The
McDonnell Douglas framework is a
judge-made evidentiary “tool.”
Comcast Corp. v.
National
Assn. of African American-Owned Media, 589 U.S. 327, 340
(2020). It was originally developed for courts to use in a bench
trial.
Hittle, 604 U. S., at ___ (opinion of Thomas,
J.) (slip op., at 3). Its intended purpose was to help “bring the
litigants and the court expeditiously and fairly to th[e] ultimate
question” in a Title VII case—that is, whether “the defendant
intentionally discriminated against the plaintiff.”
Texas Dept.
of Community Affairs v.
Burdine,
450
U.S. 248, 253 (1981).
The framework has three steps, which this Court
has summarized as follows: “First, the plaintiff has the burden of
proving by the preponderance of the evidence a prima facie case of
discrimination.”
Id., at 252–253. “Second, if the plaintiff
succeeds in proving the prima facie case, the burden shifts to the
defendant ‘to articulate some legitimate, nondiscriminatory reason
for the employee’s rejection.’ ”
Id., at 253 (quoting
McDonnell Douglas, 411 U. S., at 802). “Third, should
the defendant carry this burden, the plaintiff must then have an
opportunity to prove by a preponderance of the evidence that the
legitimate reasons offered by the defendant were not its true
reasons, but were a pretext for discrimination.” 450 U. S., at
253
.
The
McDonnell Douglas framework was made
“out of whole cloth.”
Hittle, 604 U. S., at ___
(opinion of Thomas, J.) (slip op., at 3). Its contours have no
basis in the text of Title VII or any other source of law. And, as
far as I can tell, this Court has never attempted to justify it on
textual grounds.
Ibid.; see
Tynes v.
Florida Dept.
of Juvenile Justice, 88 F. 4th 939, 952 (CA11 2023)
(Newsom, J., concurring) (“There’s certainly no textual warrant in
Title VII or the Federal Rules for so elaborate a scheme, and so
far as I know, no one has ever even sought to justify it as rooted
in either”);
Griffith v.
Des Moines,
387 F.3d 733, 740 (CA8 2004) (Magnuson, J., concurring
specially) (“Absent from th[e] opinion was any justification or
authority for this scheme”).
B
The
McDonnell Douglas framework
exemplifies how judge-made doctrines can have amorphous bounds.
Although originally designed for the bench-trial context, the
McDonnell Douglas framework has over the years “taken on a
life of its own.”
Tynes, 88 F. 4th, at 952 (Newsom, J.,
concurring). It is today “the presumptive means of resolving Title
VII cases at summary judgment.”
Ibid. And, that development
has come without this Court ever considering—much less holding—that
the framework is an appropriate tool for the summary-judgment
task.
Far from extending the framework to new
contexts, this Court has taken steps to “limi[t] the relevancy and
applicability of the
McDonnell Douglas framework.” T.
Tymkovich, The Problem With Pretext, 85 Denver U. L. Rev. 503, 507
(2008) (Tymkovich). For example, this Court has held that
McDonnell Douglas is “inapplicable” when the plaintiff
relies on direct evidence to prove his claim.
Trans World
Airlines, Inc. v.
Thurston,
469
U.S. 111, 121 (1985). The Court has also held that the
framework does not apply in Title VII mixed-motive cases.
Price
Waterhouse v.
Hopkins,
490 U.S.
228, 258 (1989) (plurality opinion). We have said that the
framework is inapplicable at the pleading stage,
Swierkiewicz v.
Sorema N. A.,
534 U.S.
506, 508 (2002), and in deciding post-trial motions,
Postal
Service Bd. of Governors v.
Aikens,
460 U.S.
711, 715 (1983). This Court has further explained that a
plaintiff need not satisfy the first step of the framework at
trial.
Ibid. And, we have strongly suggested that the
framework should not be referenced in jury instructions because it
is too confusing.
Vance v.
Ball State Univ.,
570 U.S.
421, 444–445, and n. 13 (2013).
Notwithstanding this Court’s steps to limit
McDonnell Douglas, it is now the framework that “courts
typically apply” “to determine whether the plaintiff has proffered
sufficient evidence to survive summary judgment.”
Jackson v.
VHS Detroit Receiving Hospital, Inc., 814 F.3d 769, 776 (CA6
2016). The reason for this expansion is unclear. This Court has
only once addressed the application of
McDonnell Douglas to
Title VII cases at summary judgment, and it held that the framework
did not apply. See
Trans World Airlines, 469 U. S., at
121.[
4] But, however we got
here,
McDonnell Douglas now undeniably plays a prominent
role in Title VII cases at summary judgment.
C
I seriously doubt that the
McDonnell
Douglas framework is a suitable tool for evaluating Title VII
claims at summary judgment. In my view, the framework is
incompatible with the summary-judgment standard; it fails to
encompass the various ways in which a plaintiff could prove his
claim; it requires courts to maintain artificial distinctions
between direct and circumstantial evidence; and it has created
outsized judicial confusion.
1
My first concern is that the
McDonnell
Douglas framework is incompatible with the summary-judgment
standard set forth in Federal Rule of Civil Procedure 56.
Rule 56(a) requires a court to grant summary
judgment when the movant establishes that there is “no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” But, “the language this Court has
used to describe the [
McDonnell Douglas] framework does not
neatly track” that rule.
Hittle, 604 U. S., at ___
(opinion of Thomas, J.) (slip op., at 4). Namely, the framework
does not speak in terms of “genuine dispute[s]” regarding the
facts. Fed. Rule Civ. Proc. 56(a). Instead, it speaks in terms of
“proving” facts “by the preponderance of the evidence.”
Burdine, 450 U. S., at 252–253. That difference is
significant because “a plaintiff need not establish or prove any
elements—by a preponderance or otherwise—to survive summary
judgment.”
Hittle, 604 U. S., at ___ (opinion of
Thomas, J.) (slip op., at 4). In my view, requiring a plaintiff to
satisfy the
McDonnell Douglas framework—as this Court has
described it—requires a plaintiff to prove too much at summary
judgment.
If courts are to apply
McDonnell Douglas
at summary judgment, they must modify the framework to match the
applicable legal standard. For example, at the third step, the
question for the court cannot be whether the plaintiff has
“prove[d] by a preponderance of the evidence that the legitimate
reasons offered by the defendant . . . were a pretext for
discrimination.”
Burdine, 450 U. S., at 253. Instead,
the plaintiff need only present sufficient evidence to create a
“genuine dispute as to” whether the employer’s stated reason was
pretextual. Rule 56(a).
2
A second problem with the
McDonnell
Douglas framework is that it fails to capture all the ways in
which a plaintiff can prove a Title VII claim. See
Hittle,
604 U. S., at ___ (opinion of Thomas, J.) (slip op., at 5).
McDonnell Douglas “sets forth criteria that, if satisfied,
will allow a plaintiff to prove a Title VII violation.” 604
U. S., at ___ (slip op., at 5)
. But, satisfying
McDonnell Douglas is “not the only way” to prevail under
Title VII. 604 U. S., at ___ (slip op., at 5)
.
For example, the text of Title VII provides that
“an unlawful employment practice is established when the
complaining party demonstrates that race, color, religion, sex, or
national origin was a
motivating factor for any employment
practice,
even though other factors also motivated the
practice.” 42 U. S. C. §2000e–2(m) (emphasis added).
In other words, a plaintiff may establish a Title VII violation by
proving that an employer took an employment action
in part
because of an unlawful motive.
Yet, the
McDonnell Douglas framework
requires a plaintiff to prove that “the legitimate reasons offered
by the defendant were not its true reasons, but were a pretext for
discrimination.”
Burdine, 450 U. S., at 253. That
requirement demands more than the text of Title VII: Under the
statute, a plaintiff need not establish that the employer’s stated
reason for its action was
wholly pretextual. A plaintiff
could prevail even if the employer’s stated reason was
part
of the reason for the employer’s action. It follows that a
plaintiff ’s inability to satisfy
McDonnell Douglas’s
third step does not necessarily mean that the plaintiff ’s
claim should fail. In view of that problem, this Court has held
that the
McDonnell Douglas framework should not be used in
cases where the plaintiff argues that the employer operated with
mixed motives.
Price Waterhouse, 490 U. S., at 258
(plurality opinion). Instead, the framework appears to be limited
to cases where the plaintiff argues that discrimination was the
sole factor influencing the employer’s decision. But, “[n]othing in
the text of [Title VII] indicates that Congress intended courts to
maintain this dichotomy.” Tymkovich 522.
And, even in so-called single-motive cases,
McDonnell Douglas fails to capture all the ways in which a
plaintiff could prevail. See
Berry v.
Crestwood
Healthcare LP, 84 F. 4th 1300, 1310 (CA11 2023) (observing
that a plaintiff can prove a Title VII claim without satisfying
McDonnell Douglas’s three steps). A plaintiff who cannot
establish a prima facie case at the first step or pretext at the
third step can still prevail under Title VII so long as his
evidence raises a reasonable inference of unlawful discrimination.
The “ultimate question” is simply whether “the defendant
intentionally discriminated against the plaintiff.”
Burdine,
450 U. S., at 253.
3
Another problem with the
McDonnell
Douglas framework is that it requires courts to draw and
maintain an artificial distinction between direct and
circumstantial evidence.
This Court has held that “the
McDonnell
Douglas test is inapplicable where the plaintiff presents
direct evidence of discrimination.”
Trans World Airlines,
469 U. S., at 121. Our precedent therefore requires courts to
“make the often subtle and difficult distinction between ‘direct’
and ‘indirect’ or ‘circumstantial’ evidence.”
Price
Waterhouse, 490 U. S., at 291 (Kennedy, J.,
dissenting).
In most civil litigation contexts, courts have
no occasion to distinguish between direct and circumstantial
evidence. “[I]n any lawsuit, the plaintiff may prove his case by
direct or circumstantial evidence,” or some combination thereof.
Aikens, 460 U. S., at 714, n. 3. And, the law
makes no distinction regarding the weight or value assigned to
either kind of evidence. “The reason for treating circumstantial
and direct evidence alike,” we have explained, “is both clear and
deep rooted: ‘Circumstantial evidence is not only sufficient, but
may also be more certain, satisfying and persuasive than direct
evidence.’ ”
Desert Palace, Inc. v.
Costa,
539 U.S.
90, 100 (2003).
That “ ‘[c]onventional rul[e] of civil
litigation’ ”—that a plaintiff can proceed with direct or
circumstantial evidence—applies with full force to Title VII cases.
Id., at 99. Yet,
McDonnell Douglas requires courts to
determine at the outset the nature of the evidence before it, which
often prolongs litigation instead of streamlining it. See,
e.g.,
Othman v.
Country Club Hills, 671 F.3d
672, 675 (CA8 2012). Because a Title VII plaintiff can prove his
claim with either direct or circumstantial evidence, I am skeptical
of a framework that requires courts to perform the “difficult” task
of characterizing each piece of evidence.
Price Waterhouse,
490 U. S., at 291 (Kennedy, J., dissenting).
4
That the
McDonnell Douglas framework
“has befuddled” courts “[s]ince its inception” is yet another
reason to question it.
Griffith, 387 F. 3d, at 746
(Magnuson, J., concurring specially). Six years after this Court
created the framework, the First Circuit observed that “the
subtleties of
McDonnell Douglas are confusing” and “have
caused considerable difficulty for judges of all levels.”
Loeb v.
Textron, Inc., 600 F.2d 1003, 1016 (CA1
1979). That early confusion never dissipated. A decade later,
Justice Kennedy made the same observation, explaining that “[l]ower
courts long have had difficulty applying
McDonnell Douglas.”
Price Waterhouse, 490 U. S., at 291 (dissenting
opinion). About 20 years after that, Judge Tymkovich too observed
that “[l]ower courts have struggled to implement the
burden-shifting framework for over thirty years.” Tymkovich 529.
The
McDonnell Douglas framework has been on the books for
over 50 years now, and courts still report “continuing confusion.”
Tynes, 88 F. 4th, at 945; see also
Hittle, 604
U. S., at ___ (opinion of Thomas, J.) (slip op., at 6)
(collecting examples). That those who have carefully grappled with
the framework for decades cannot make sense of it suggests that the
framework is unworkable.
D
This case did not present the question whether
the
McDonnell Douglas framework is an appropriate tool for
evaluating Title VII claims at summary judgment. In a case where
that issue is squarely before us, I would consider whether the
framework should be used for that purpose.
In the meantime, litigants and lower courts are
free to proceed without the
McDonnell Douglas framework.
This Court has never required anyone to use it. And, district
courts are well equipped to resolve summary judgment motions
without it. Every day—and in almost every context except the Title
VII context—district courts across the country resolve summary
judgment motions by applying the straightforward text of Rule 56.
In my view, it might behoove courts and litigants to take that same
approach in Title VII cases.
* * *
Atextual, judge-created legal rules have a
tendency to generate complexity, confusion, and erroneous results.
I am pleased that the Court correctly rejects the atextual
“background circumstances” rule today.
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