Scott Gilmore Thompson PLLC

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https://www.cbsnews.com/news/supreme-court-reverse-discrimination-ames/

The Supreme Court’s decision in Ames v Ohio Department of Youth Services was not, at all, controversial. Virtually every employment lawyer we know expected the result—there is no enhanced proof required when a member of a majority group (white, straight, etc.) sues alleging discrimination. Title VII makes no such distinction, and the judicially created enhanced burden stood no chance of survival at this Court.

But that isn’t the story. What WAS a surprise was a concurrence from Justice Clarence Thomas, joined by Justice Neil Gorsuch, saying the federal courts have been far too hard on ALL employment discrimination plaintiffs, and calling for the elimination of the McDonnell Douglas burden shifting framework. That Justice Thomas, of all people, thinks McDonnell Douglas unfairly penalizes employment plaintiffs is a shock. That he said it out loud is astounding. Because it’s the same argument most employment lawyers who represent employees (plaintiffs) have been making FOR DECADES.

McDonnell Douglas’ dance was created more than 50 years ago to help district courts try discrimination cases at a time when there were no jury trials. That it turned into a murderous doctrine that often kicked legitimate employment claims out of court was, Justice Thomas noted, never intended, and never expressly approved by the Court (this might come as a surprise to many federal judges, including some of Justice Thomas’ current colleagues on the Supreme Court). But almost no employment lawyer we know thought it would be Justice Thomas who finally said what we’ve been saying all along—McDonnell Douglas is outdated and needs to go away.

Hopefully some case soon will raise the issue. Because if McDonnell Douglas is sent to the trash heap (and again, hopefully soon), it seems certain more plaintiffs with legitimate claims may find federal court a far more friendly jurisdiction than has existed there for the past three decades. Here’s hoping.

Supreme Court sides with Ohio woman in reverse discrimination case The Supreme Court on Thursday revived a lawsuit from an Ohio woman who​ claimed she was the victim of reverse discrimination.