New England Biz Law Update
The 5th U.S. Circuit Court of Appeals has declined to abandon the longstanding McDonnell Douglas framework used to evaluate many employment discrimination claims, even as two judges on the panel openly questioned whether the test remains sound.
The court nevertheless affirmed summary judgment for Procter & Gamble in a former employee’s race discrimination and retaliation lawsuit, finding that he failed to show the company’s stated reasons for terminating him were a pretext for unlawful bias.
The plaintiff, a white former employee, alleged that P&G discriminated against him based on race and retaliated against him after he raised concerns about racial discrimination.
P&G maintained that it terminated him because company records showed he violated a corporate credit card policy and a procurement policy.
The employee argued that similarly situated non-white employees were treated more favorably and disputed the company’s interpretation of one of the policies.
Applying the McDonnell Douglas burden-shifting framework, the 5th Circuit concluded that the employee failed to produce enough evidence to show that P&G’s stated reasons were a pretext for discrimination or retaliation. The court also upheld dismissal of his claim under the state whistleblower law.
Judges question future of ‘McDonnell Douglas’ framework
McDonnell Douglas has been used for decades in cases where employees lack direct evidence of intentional discrimination. Once an employer offers a legitimate, nondiscriminatory reason for its action, the employee generally must produce evidence that the stated reason was actually a pretext for discrimination.
Although the panel applied that framework because existing 5th Circuit precedent required it to do so, Judge James C. Ho called McDonnell Douglas “wrong” in a concurrence joined by Chief Judge Jennifer Walker Elrod. Ho argued that the test imposes requirements not found in the text of Title VII and has been improperly extended to the summary judgment stage.
The criticism follows similar questions raised at the U.S. Supreme Court. In a concurrence in the 2025 Ames v. Ohio Department of Youth Services decision, Justice Clarence Thomas, joined by Justice Neil M. Gorsuch, expressed willingness to reconsider the McDonnell Douglas framework in a future case.
Current standard remains in place
For now, McDonnell Douglas remains an important part of employment discrimination litigation, and the 5th Circuit’s decision does not change the test employers and employees currently face.
The case is nevertheless worth watching because criticism of the framework is now coming from judges at both the appellate and Supreme Court levels.
Any eventual change could alter how discrimination cases based on circumstantial evidence are evaluated, particularly at the summary judgment stage.
For employers, the immediate lesson remains familiar: clear documentation of legitimate reasons for discipline and termination can be critical when employment decisions are later challenged as discriminatory or retaliatory.
