Summary: Courts have used the 50-year-old McDonnell Douglas framework to evaluate workplace discrimination and retaliation cases based on circumstantial evidence. Two Supreme Court Justices have called for it to be scrapped, and a new case in the Fifth Circuit could change how every discrimination lawsuit is litigated in Texas.

You gave a company years of your life. You arrived early, stayed late, trained the new hires, and never received a negative review. Then something changed. Maybe it was after you came back from medical leave. Maybe it was after you turned fifty. Maybe it was after you reported conduct you believed was illegal. Whatever the turning point was, the job you had on Monday did not feel like the same job by Friday. And then you were sidelined, demoted, or terminated. The reason they gave you did not match what you saw with your own eyes. You know what really happened. But the question that keeps you up at night is whether you can prove it.

You are not alone in that frustration. Most employees who experience discrimination or retaliation at work do not receive a memo explaining the real reason behind what happened to them. Employers rarely put motive in writing. There is no email from a supervisor stating that the termination was because of a protected characteristic (i.e., race, sex, age, disability), or because of a protected activity (filing a complaint about illegal conduct). What people typically see instead is a pattern: a sudden negative performance review after years of clean evaluations, a promotion given to someone less qualified, or a firing that comes suspiciously soon after a complaint to HR or supervisor.

The pattern you noticed is what the law calls circumstantial evidence. When an employee files a discrimination or retaliation lawsuit based on circumstantial evidence rather than direct proof of the employer’s intent, courts turn to a legal test to evaluate the strength of the claim. That test is known as the McDonnell Douglas burden-shifting framework. It applies to claims brought under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and similar antidiscrimination laws. The framework has been the standard method for evaluating these claims for more than fifty years. It determines whether your case survives long enough to reach a jury or gets thrown out before trial.

And right now, that framework is under serious scrutiny.

How the Framework Works

The McDonnell Douglas framework comes from a 1973 Supreme Court decision, McDonnell Douglas Corp. v. Green. It outlines a three-step process for cases without a smoking gun (aka direct evidence).

First, the employee must establish a prima facie case. In plain terms, this means showing enough basic facts to support a reasonable inference that discrimination or retaliation occurred. For example, in a termination case, the employee would typically need to show that they belong to a protected class, they were qualified for the position, they were terminated, and either someone outside their protected class replaced them or the circumstances suggest discrimination played a role.

Second, if the employee clears that initial step, the burden shifts to the employer to offer a legitimate, non-discriminatory reason for the adverse action. This is not a high bar. The employer only has to articulate a reason—poor performance, restructuring, policy violations, or any number of explanations.

Third, and this is where most cases are won or lost, the burden shifts back to the employee to show that the employer’s stated reason is pretextual. In other words, the employee must demonstrate that the employer’s stated reason was not the real reason and that discrimination or retaliation was the motive.

Why It Matters to You

If you have ever wondered why discrimination or retaliation cases are difficult to win even when the facts seem obvious, this framework is a significant part of the answer. The pretext stage—step three—is where many otherwise strong cases are dismissed on summary judgment before a jury ever hears them. An employer offers a facially neutral explanation, and if the employee cannot produce enough evidence to show that the explanation is false and that discrimination was the actual motive, the case is over.

This means that even if you were fired the week after filing an internal complaint, even if your replacement was less experienced, even if your supervisor made comments that felt discriminatory, your case can still be dismissed if a judge determines that you did not sufficiently prove that the employer’s stated reason was a pretext for discrimination.

The Framework Is Being Challenged

In June 2025, the Supreme Court decided Ames v. Ohio Department of Youth Services, a case that struck down the so-called “background circumstances” rule in discrimination cases. The decision itself was significant, but what made headlines in legal circles was the concurrence written by Justice Clarence Thomas and joined by Justice Neil Gorsuch. In that concurrence, Justice Thomas directly questioned whether the McDonnell Douglas framework should continue to exist at all, calling it a “judge-made evidentiary tool” that has no statutory basis.

Justice Thomas had already signaled this view months earlier when the Court declined to hear Hittle v. City of Stockton. In a rare dissent from the denial of review, Justice Thomas wrote that he would have taken the case specifically to reconsider whether the burden-shifting framework remains workable.

Now, cases are developing in lower courts that could force the issue. In the Fifth Circuit—the federal appellate court that covers Texas, Louisiana, and Mississippi—Bassett v. Gray Media Group (No. 25-60278) presents a direct challenge to how the framework is applied. At the Supreme Court level, the petition in Mays v. Newly Weds Foods Inc. (No. 25-499) asked the Justices to determine whether the pretext requirement conflicts with ordinary summary judgment rules, but the Court declined to hear the case in January 2026. That denial does not end the debate. It simply means the challenge will continue to develop in the lower courts.

The argument, in simplified terms, is this: under normal summary judgment standards in civil litigation, a plaintiff needs only to show that there is a genuine dispute of material fact—enough that a reasonable jury could find in their favor. But the McDonnell Douglas framework imposes an additional, specific requirement that the plaintiff must disprove the employer’s stated reason. Critics say this extra step is not found anywhere in Title VII and effectively gives employers an advantage that defendants in other types of civil cases do not enjoy.

What Could Change

If the McDonnell Douglas framework is modified or eliminated, it could significantly affect how discrimination and retaliation cases are litigated. Without the rigid three-step test, courts would evaluate discrimination or retaliation claims the same way they evaluate other civil claims at summary judgment: by looking at whether all the circumstantial evidence, taken together, creates a genuine question for a jury.

Some circuits are already moving in this direction. The Eleventh Circuit, for example, has adopted a holistic approach called the “convincing mosaic” standard, which allows courts to look at the totality of a plaintiff’s circumstantial evidence rather than requiring the employee to negate the employer’s specific stated reason. Under this approach, pieces of evidence that individually might not be sufficient—a suspicious timeline, a pattern of disparate treatment, inconsistent explanations—can be considered together to form a picture of discrimination.

For employees, this could mean that more cases survive to trial. For the legal system, it could represent the most significant change to employment discrimination litigation in a generation.

What This Means for Texas Employees

These developments are not abstract legal theory. They have practical consequences for anyone in Texas who believes they have been discriminated against or retaliated against at work. Right now, if you bring a discrimination case in a federal court within the Fifth Circuit, your attorney will need to navigate the McDonnell Douglas framework at summary judgment. That means building a record that not only supports your version of events but also specifically undermines whatever reason your employer offers for the adverse action.

Regardless of whether the framework changes, there are steps you can take to protect yourself. Document everything. If you receive a sudden negative review or a disciplinary write-up that does not reflect your actual performance, put your objections in writing. If you believe you were passed over for a promotion and someone less qualified received it, keep records of your qualifications and theirs. If you report discrimination or harassment and experience retaliation afterward, note the dates and the sequence of events. Timing often becomes a significant part of the story in these cases.

If you believe you have been discriminated against or retaliated against at work, speak with an experienced employment attorney who can evaluate the strength of your claims under the current legal standards and advise you on how evolving case law may affect your options. Contact us in Houston or one of my colleagues in Dallas or Austin today to schedule a consultation.