The United States Supreme Court denied certiorari in Hittle v. City of Stockton on March 10, 2025. Justice Thomas’ pointed dissent, joined by Justice Gorsuch, makes clear that at least two justices are prepared to revisit the McDonnell Douglas burden-shifting framework that has governed discrimination litigation for over 50 years.[i] For employment practitioners, this case offers a preview of what could happen when the Court next confronts this “judge-created doctrine” that has, according to Justice Thomas, “spawned enormous confusion” in the lower courts.[ii]

Understanding the McDonnell Douglas Framework

For over 50 years, the McDonnell Douglas burden-shifting analysis has been a centerpiece in employment discrimination litigation. Emerging from the United States Supreme Court’s 1973 decision in McDonnell Douglas Corp. v. Green,[iii] the framework was originally designed to help trial courts evaluate circumstantial evidence in Title VII racial discrimination cases involving hiring decisions. However, what began as a tool for Title VII cases has expanded across the larger landscape of employment law. For example, courts have applied McDonnell Douglas to claims under the Americans with Disabilities Act, the Age Discrimination in Employment Act, and the Rehabilitation Act.[iv] And many state courts, including Idaho, have adopted the framework for analyzing discrimination claims under state laws.[v]

The McDonnell Douglas framework operates through a three-stage process. First, a plaintiff employee must establish a prima facie case of discrimination, typically, by showing (1) they belong to a protected class, (2) they are qualified for the position, (3) they experienced an adverse employment action, and (4) similarly situated people outside the protected class received more favorable treatment or there are other circumstances giving rise to an inference of discrimination.[vi] Once established, the burden of production shifts to the defendant employer to articulate a legitimate, nondiscriminatory reason for its actions.[vii] If the employer meets their burden, the burden returns to the plaintiff to demonstrate that the employer’s stated reason is in fact pretext for discrimination.[viii] Generally, the plaintiff can show pretext either directly, by persuading the court that a discriminatory reason more likely motivated the employer, or indirectly, by showing that the employer’s explanation is unworthy of credence.[ix]

The Hittle Case

Justice Thomas viewed Ronald Hittle’s case as an ideal vehicle for revisiting McDonnell Douglas.[x] Hittle, an at-will fire chief, was directed by his supervisor to attend a leadership training program.  After Hittle selected a program held at a Christian church, his supervisor raised concerns that he had selected a “religious program,” among other allegations of misconduct.[xi] The city hired an outside investigator who concluded that Hittle had committed misconduct owing to his attendance at a “religious event” on city time using city resources.[xii]  The city then terminated Hittle based on the conclusions reached in the investigator’s report.[xiii]

Hittle sued the city and its leadership, alleging that his termination was the result of unlawful religious discrimination in violation of Title VII and the California Fair Employment and Housing Act. Following consideration of Hittle’s partial motion for summary judgment and the Defendants’ motion seeking dismissal of all of Hittle’s claims, the district court granted summary judgment for Defendants, and the Ninth Circuit affirmed.[xiv] Why? Because under the third step of McDonnell Douglas, Hittle failed to demonstrate that the “legitimate non-discriminatory reasons for firing him were mere pretext for religious discrimination.”[xv] As the Ninth Circuit explained, while “an aspect of [the investigator’s report] and the notice terminating Hittle was the religious nature of the leadership event, a nexus to a protected characteristic is not enough to preclude summary judgment for the employer.”[xvi] The court found that “the facts that Hittle identifies as circumstantial evidence of discriminatory pretext are neither specific nor substantial enough to support a finding of unlawful employment discrimination.”[xvii]

In Justice Thomas’s view, Hittle represents exactly what is wrong with McDonnell Douglas: the framework distorts the trial court’s analysis by replacing the usual summary judgment standard with a confusing burden-shifting exercise.[xviii] Rather than rely on “judge-created doctrine,” Justice Thomas states that Title VII claims “should survive summary judgment so long as the plaintiff establishes a genuine dispute of material fact about each element of his claim.”[xix]

Justice Thomas is not alone in his views. His pointed dissent catalogues a number of lower court opinions where judges have “gone out of their way to describe the chaos sown by McDonnell Douglas.”[xx] Notably, one of the lower court opinions cited was authored by then-Circuit Judge Kavanaugh, who took aim at the prima-facie-case aspect of McDonnell Douglas, calling it “a largely unnecessary sideshow” that has “spawn[ed] enormous confusion and wast[ed] litigant and judicial resources[,]” perhaps suggesting that Justice Kavanaugh may be willing to join his dissenting colleagues in reconsidering McDonnell Douglas at a later date.[xxi]

However, not everyone agrees that McDonnell Douglas lacks value. While its critics contend McDonnell Douglas is a “judge‑created” construct, the Supreme Court has emphasized the framework’s value as a practical evidentiary tool for plaintiffs who lack direct proof. In the 1985 decision in Trans World Airlines, Inc. v. Thurston, for example, the Court recognized that the McDonnell Douglas framework was designed to ensure that plaintiffs “have [their] day in court despite the unavailability of direct evidence.”[xxii] Much more recently, the Court, in an opinion delivered by Justice Jackson, characterized McDonnell Douglas as merely aiming “to provide ‘a sensible, orderly way to evaluate the evidence’ that ‘bears on the critical question of discrimination.’”[xxiii] In short, some view the McDonnell Douglas framework as providing a structured pathway that compels the employer to articulate a legitimate reason or risk judgment, thereby permitting a plaintiff to test whether the proffered explanation holds up.

What Comes Next?

For now, employment practitioners should continue to pay close attention to how each court interprets McDonnell Douglas’ requirements. State specific applications should also continue to be considered. In Idaho, for example, the framework does not apply at the summary judgment stage in retaliatory discharge cases under Idaho’s Whistleblower Act.[xxiv] And in a somewhat recent decision, the California Supreme Court held that whistleblower retaliation claims under California Labor Code Section 1102.5 are governed by the two-step test articulated in Labor Code Section 1102.6, not McDonnell Douglas.[xxv]  Fair Employment and Housing Act retaliation claims, by contrast, remain evaluated under McDonnell Douglas.

While the Court denied certiorari in Hittle, Justice Thomas’ dissent reads like a roadmap for future challenges. With at least two justices ready to reconsider McDonnell Douglas, and a conservative majority that has been willing to revisit and overturn longstanding precedent and principles, the United States Supreme Court may take up the issue in the near future.

Alexandra Grande is a Partner at Holland & Hart, practicing in her hometown of Boise. Alex specializes in employment law and business litigation, and regularly represents employers in discrimination, retaliation, and wrongful discharge cases before state and federal courts and agencies. Alex also provides counsel on employment policies, compliance matters, and business acquisitions. After receiving her Bachelor of Arts in history and political economy from The College of Idaho, she received her J.D. from the University of Idaho’s College of Law. Alex maintains an active pro bono practice and serves as Chair of the Holland & Hart Foundation’s Boise Office Committee.

Zack McCraney is an associate in Holland & Hart’s commercial litigation and appellate practice groups. Growing up in Boise, Zack earned his undergraduate degree from Boise State University and his J.D. from Notre Dame Law School. He represents clients in contract disputes, business torts, construction matters, and employment litigation, leveraging strong negotiation and advocacy skills.

BIO: Zack McCraney is an associate in Holland & Hart’s commercial litigation and appellate practice groups. Growing up in Boise, Zack earned his undergraduate degree from Boise State University and his J.D. from Notre Dame Law School. He represents clients in contract disputes, business torts, construction matters, and employment litigation, leveraging strong negotiation and advocacy skills.

[i] Hittle v. City of Stockton, 145 S. Ct. 759 (2025).

[ii] Id. at 759 (Thomas, J., dissenting) (citations and alterations omitted).

[iii] McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

[iv] See, e.g., Budnick v. Town of Carefree, 518 F.3d 1109, 1114 (9th Cir. 2008) (ADA); Wallis v. JR. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994) (ADEA).

[v] See Mendez v. Univ. Health Servs. Boise State Univ., 163 Idaho 237, 243, 409 P.3d 817, 823 (2018); Merrick v. Hilton Worldwide, Inc., 867 F.3d 1139, 1145 (9th Cir. 2017) (“California courts apply the McDonnell Douglas burden-shifting framework to analyze disparate treatment claims under FEHA”); A. Dean Bennett & Scott E. Randolph, Idaho Supreme Court Reverses Course in Applying the McDonnell Douglas Burden-Shifting Framework to Summary Judgement Motion, 57 Advocate 28 (Feb. 2014); Hatheway v. Bd. of Regents of the Univ. of Idaho, 155 Idaho 255, 310 P.3d 315 (2013).

[vi] Mendez, 163 Idaho at 243, 409 P.3d at 823 (citation omitted); Ames v. Ohio Dep’t of Youth Servs., 605 U.S. 303, 308 (2025).

[vii] Id.

[viii] Id.

[ix] Campbell v. Shinseki, 546 F. App’x 874, 877 (11th Cir. 2013) (quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981)).

[x] Hittle, 145 S. Ct. at 763 (2025) (the Hittle “case squarely presents the question whether McDonnell Douglas should be overruled”) (Thomas, J., dissenting).

[xi] Id.

[xii] Id.

[xiii] Id. at 764.

[xiv] Hittle v. City of Stockton, 101 F.4th 1000, 1022 (9th Cir. 2024) (VanDyke, J., dissenting from the denial of rehearing en banc).

[xv] Hittle, 145 S. Ct. at 764 (Thomas, J., dissenting).

[xvi] Hittle, 101 F.4th at 1017.

[xvii] Id.

[xviii] Hittle, 145 S. Ct. at 764 (Thomas, J., dissenting).

[xix] Id. at 763 (citation omitted).

[xx] Id. at 762 (listing cases).

[xxi] Brady v. Office of the Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008).

[xxii] Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985) (citation omitted).

[xxiii] Ames, 605 U.S. at 308 n.2 (citation omitted) (notably, in a concurring opinion in Ames, Justice Thomas, joined by Justice Gorsuch, renewed their critique of McDonnell Douglas by emphasizing that while the Court “assumes without deciding that the McDonnell Douglas framework is an appropriate tool for making that determination[,]” this “judge-made McDonnell Douglas framework has no basis in the text of Title VII[,]” signaling their continued commitment to reconsidering the precedent). 

[xxiv] Berrett v. Clark Cty. Sch. Dist. No. 161, 165 Idaho 913, 917, 454 P.3d 555, 559 (2019).

[xxv] Lawson v. PPG Architectural Finishes, Inc., 503 P.3d 659, 667–68 (Cal. 2022).