Two Judges Just Volunteered to Kill a 50-Year-Old Discrimination Standard

An employee’s attempt to end fifty years of discrimination-law precedent went nowhere on appeal. But, two of the three judges who rejected it wrote separately to say they’d take another case just to do it.

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TL;DR: A federal appeals court affirmed summary judgment for the employer on race discrimination, retaliation, and a Louisiana whistleblower claim, rejecting the plaintiff’s push to abandon the McDonnell Douglas framework for evaluating discrimination claims. Two of the three judges wrote separately to say they’d welcome a future case built to do it.

📄 Read the court’s opinion here

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Two Audits, Two Violations, One Clean Termination

The employee spent fifteen years at a consumer products manufacturer, coordinating with waste-disposal vendors and signing off on manifest forms. In 2020, an internal audit caught him bypassing procurement to contact suppliers directly, earning him the mildest discipline available. A second audit two years later caught the same violation again, around when he says he complained about racial discrimination and regulatory violations. In between, he’d admitted to misusing his company credit card for about $215 in personal charges.

A federal appeals court affirmed summary judgment for the employer on all three claims: race discrimination, retaliation, and a Louisiana whistleblower claim. On the discrimination claim, the panel found the plaintiff’s only evidence was his own testimony that he felt coworkers of another race were treated better, with no comparators and no discovery behind it. The company fired him in December 2022, citing the repeat violation and the credit card misuse.

Two Judges Just Published a Roadmap for Killing McDonnell Douglas

Inside the discrimination claim was a bigger ask. The plaintiff urged the court to abandon McDonnell Douglas, the 1973 framework nearly every workplace discrimination case still gets decided under, pointing to Justice Thomas’s concurrence earlier this year in Ames v. Ohio Department of Youth Services, where he argued the standard has no real basis in Title VII’s text. The panel wasn’t persuaded it could act on that yet, and, bound by precedent, found no error in applying the framework the plaintiff wanted retired.

That should have ended the discussion. Instead, two of the three judges, including the chief judge, wrote separately to make the plaintiff’s argument for him, just in the right case. The concurrence calls McDonnell Douglas “made out of whole cloth” and argues, point by point, that it asks more of plaintiffs than Title VII’s text or the civil rules require. Both judges said they’d welcome the chance to overturn it.

None of this changes today’s summary judgment standard; McDonnell Douglas still controls in the Fifth Circuit. But two judges have shown their hand, and employers who start building thicker case files now, not just clearing the current bar, will be ready whenever that changes.

The Concurrence Is the Real Story Here

Killing McDonnell Douglas would make summary judgment harder for employers, not easier

McDonnell Douglas asks more of plaintiffs than the ordinary summary judgment standard does, twice over. Getting past summary judgment at all requires proving the basic case by a preponderance of the evidence, not just raising a genuine dispute. And winning still means showing the employer’s stated reason wasn’t the real one, when the statute itself only requires that discrimination be a motivating factor, even alongside a legitimate reason. Take either requirement away, and weaker claims survive longer.

A second violation of the same policy beats almost any pretext argument

What actually sank the retaliation claim wasn’t the timing of the complaints, it was that a second audit caught the same type of violation around the same time. When building a defense to a retaliation claim, look for whether the misconduct repeats something already documented; a pattern is harder to wave off as coincidence than one incident is.

An employee’s feelings about disparate treatment aren’t evidence without comparators

That gap, no comparators, no discovery, just a subjective sense of unfair treatment, wouldn’t survive summary judgment under any standard, McDonnell Douglas or the ordinary Rule 56 test alike. This case never got close to testing the framework the concurrence wants gone, because there was nothing here for either standard to weigh.

The employee lost on the facts. The bigger argument, whether courts should still use a fifty-year-old framework nobody wrote into the statute, is still alive, waiting for a better case to make it.