Why SCOTUS’s Ames Decision May Change How You Prove Employment Discrimination in New Jersey.
July is recognized throughout the United States as Disability Pride Month, a time to acknowledge and celebrate the rights and achievements of people living with disabilities. In New Jersey, the rights of those living with disabilities are not only protected through our federal Constitution, the amendments thereto, and federal legislation, but also through our State’s robust Law Against Discrimination (LAD). Discrimination against employees with mental, physical, or perceived disabilities is illegal in New Jersey, and those whose rights have been violated may seek redress by filing disability discrimination claims in our civil courts. The Supreme Court of the United State’s recent decision in Ames v. Ohio Department of Youth Services,1 however—particularly Justice Clarence Thomas’s concurring opinion—may signal a change in the way disabled plaintiffs prove discrimination claims under the LAD in the not-so-distant future.
In Ames, a heterosexual plaintiff alleged that her employer violated Title VII by denying her a promotion to a management position and subsequently demoting her; both the management position and the role from which she was demoted were filled by gay employees. The District Court and Sixth Circuit had analyzed the defense’s motion for summary judgment using the traditional burden shifting analysis set forth in McDonnell Douglas Corp. v. Green.2 That case “establishe[d] the traditional framework for evaluating claims of unequal treatment that rest on circumstantial evidence,” a burden-shifting analysis that requires plaintiffs to make an initial, prima facie showing that they were discriminated against. If a plaintiff meets this bar, a rebuttable presumption of unlawful discrimination is established and the burden shifts to the defense to rebut that presumption by the presentation of evidence showing a legitimate, nondiscriminatory reason for the employment actions taken. If such evidence is shown, the burden shifts back to the plaintiff to show by a preponderance of the evidence that the nondiscriminatory reasons were pretextual. However, Sixth Circuit precedent required plaintiffs alleging reverse discrimination, or discrimination against a majority group, to meet a heightened evidentiary standard showing that “the defendant is that unusual employer who discriminates against the majority.” In Ames, the District Court held, and the Sixth Circuit affirmed, that the plaintiff’s claim failed because she did not meet this heightened evidentiary burden.
In a 9-0 decision written by Justice Kentanji Brown Jackson, the Supreme Court reversed, holding that requiring a heightened evidentiary burden for reverse discrimination plaintiffs violated Title VII. In so holding, Justice Jackson noted that “[f]or the purposes of this case, we assume without deciding that the McDonnell Douglas framework applies at the summary-judgment stage of litigation.”
Justice Thomas concurred, however he wrote separately to state that he “would be willing to consider whether the McDonnell Douglas framework is a workable and useful evidentiary tool.” Justice Thomas described that “[t]he McDonnell Douglas framework is a judge-made evidentiary ‘tool,’” originally for use in Title VII bench trials to “bring the litigants and the court expeditiously and fairly to th[e] ultimate question . . . [whether] the defendant intentionally discriminated against the plaintiff.” Yet Justice Thomas pointed to the fact that “[a]lthough originally designed for the bench-trial context,” the McDonnell Douglas test has since become “the presumptive means of resolving Title VII cases at summary judgment.” Why and how this has occurred, Justice Thomas wrote, was confusing because the Supreme Court “has never had occasion to decide whether the McDonnell Douglas framework is a useful or appropriate tool for evaluating any kind of claim at summary judgment.”
Justice Thomas identified four reasons that the McDonnell Douglas framework is ill-suited for summary judgment. First, he argued its incompatibility with Federal Rule of Civil Procedure 56 because a plaintiff must prove by a preponderance of the evidence that a defendant’s actions were pretextual, a greater burden than that imposed by Rule 56 at the summary judgment stage. Next, he argued that the framework shoehorns a plaintiff into one set of proofs when a Title VII claim may be proved in different ways, such as by arguing that a discriminatory purpose was a motivating factor in addition to other, nondiscriminatory factors. Third, he argued that the framework’s distinction between direct and circumstantial evidence often prolongs litigation by requiring “courts to determine at the outset the nature of the evidence,” even though civil plaintiffs may prove their claims with either direct or circumstantial evidence. Last, Justice Thomas argued that the framework’s history of “befuddl[ing]” courts was reason enough to scale back its usage to its original intention.
Justice Thomas concluded by noting that the issue was not before the court in Ames, and that courts were free to continue using McDonnell Douglas to resolve Title VII discrimination cases. However, given that the composition of the current Supreme Court is not shy about revisiting and reworking judicial doctrine, Justice Thomas’s concurrence could tee up the issue in the future, raising the question of McDonnell Douglas’s continued viability throughout employment litigation.
Although Justice Thomas’s concurrence was directed at McDonnell Douglas’s use in federal Title VII cases, the New Jersey Supreme Court has based much of the standards that govern LAD discrimination cases on federal Title VII precedent.3 Consider, again, the disability discrimination context. Disability discrimination claims in New Jersey based on circumstantial evidence must be proven using “the three-step burden-shifting test articulated by the United States Supreme Court in [McDonnell Douglas]4.” A re-examination of the utility of the McDonnell Douglas test may, by implication, impact the way in which disabled plaintiffs in New Jersey prove their discrimination claims. Given that our courts look to federal precedent for guidance, should McDonnell Douglas’s use for civil trials or the evaluation of claims at the summary judgment stage be successfully challenged at the federal level, it is not a stretch to see those same arguments be repurposed to challenge its use at the State level. Would our State diverge from federal precedent at that point, relying on our own established precedent and continue to use the McDonnell Douglas test? Or would our Supreme Court adopt a different standard, relegating McDonnell Douglas for use exclusively in bench trials as the test was originally created?
The answers to these questions may require a crystal ball at the present juncture, but keeping an eye on federal Title VII discrimination cases in light of Justice Thomas’s concurrence may keep New Jersey practitioners ahead of the curve.
If you have any questions regarding this or other topics in employment litigation, please contact Jack at jmiddough@hoaglandlongo.com or (732) 545-4717.
1605 U.S. ___ (2025).
2411 U.S. 792 (1973).
3See Grigoletti v. Ortho Pharm. Corp., 118 N.J. 89, 97 (1990).
4Grande v. St. Clare’s Health System, 230 N.J. 1, 17 (2017).