Textualism as a Pro-Employee Force in Employment Discrimination Law

Introduction

“We’re all textualists now.”1

– Justice Elena Kagan

As a method of statutory interpretation, textualism is generally understood to favor employers at the expense of employees.2 William Eskridge, for example, argues that textualism “enables pro-employer judges to import pro-employer policies into statutes that were adopted to protect workers.”3 Similarly, Catherine Fisk asserts that textualism’s results are “inconsistent with the statutory purpose of employee protection.”4 Such contentions find support in the empirical work of Lawrence Baum and James Brudney, which examines more than three hundred Supreme Court decisions applying federal statutory law in the areas of labor and employment and finds that textualism is associated with pro-employer outcomes.5

But what if textualism, or at least our understanding of textualism, has evolved? Professor Eskridge observes that “textualism is fracturing, dividing itself into camps.”6 Professor Fisk likewise recognizes tensions within, and the seeming factionalization of textualism.7 What impact might these and other contemporary developments in textualism have on the field of employment discrimination law specifically?8 Baum and Brudney’s study cannot provide any insight in that regard given that, for the purposes of this Article, it is both overinclusive and underinclusive. Specifically, the study is overinclusive to the extent it considers opinions dating to the earliest days of textualism in 1969 and because it analyzes both labor and employment decisions. Conversely, the study is underinclusive in that its pre-2019 dataset cannot detect any trends or changes that may have arisen over the past seven years.9

This Article makes a novel contribution to the field by providing a comparatively recent, labor law-free assessment of textualism’s impact on employment discrimination litigation and then contemplating modern textualism’s implications for “the most important case in employment discrimination law.”10 Part I provides a general overview of textualism as a method of statutory interpretation, drawing principally on the work of Antonin Scalia, Bryan Garner, and John Manning. Part II examines academic criticisms of textualism, relying primarily on the scholarship of William Eskridge, Jr. and Cary Franklin. Part III describes the study’s dataset and research methodology, provides brief synopses of the relevant cases, and reports its key finding—that modern textualism exhibits a consistent, positive correlation with employee-favorable outcomes. Part IV considers these findings’ implications for McDonnell Douglas Corp. v. Green,11 a case disparaged as “one of the most significant and pervasive obstacles to contemporary anti-discrimination enforcement.”12 Whereas plaintiffs wishing to challenge McDonnell Douglas may once have had reason to fear that textualism’s tenets would be overridden by its practitioners’ pro-employer inclinations, today such worries appear unfounded given the methodology’s association with employee-favorable results. As an atextual, judge-made framework, McDonnell Douglas thus appears ripe for abrogation, and the Article concludes by contemplating a post-McDonnell Douglas landscape in which courts resolve employment discrimination claims in accordance with statutory text.

I. Textualism as a Method of Statutory Interpretation

A fundamental precept of textualism is that a statute’s “words . . . are of paramount concern”13 because only the text has satisfied the constitutional requirements of bicameralism and presentment.14 The separation of powers concerns underlying textualism are twofold: possible judicial usurpation of the legislative function and possible legislative usurpation of the judicial function.15 The former manifests in judges exploiting real or perceived ambiguities in statutory text to render decisions consistent with their own policy preferences,16 whereas the latter presents in legislators’ creation of contra-textual legislative history to influence courts’ subsequent interpretive endeavors.17 Textualism seeks to obviate these risks by establishing an objective means of interpreting statutes that remains focused on the text.18

Textualists interpret statutes “on the basis of how a reasonable reader, fully competent in the language, would have understood the text at the time” of its enactment.19 Context is critical.20 Indeed, “textualists recognize that meaning can never be found exclusively within” a statute’s text “because the meaning of language depends on the way a linguistic community uses words and phrases in context.”21 Among other things, this requires that statutory terms be given their ordinary, everyday meanings unless context indicates a technical or colloquial interpretation is warranted22 and that words be ascribed their original meaning, i.e., assigned the connotation they bore at the time of the statute’s enactment.23

Textualists regard a statute’s purpose as “an essential element of context.”24 Statutory purpose, which is ascertained exclusively from the text, is not to be confused with legislative intent, which is the “design or plan that the enacting legislature had for the application of a statute to specific situations that might arise” post-enactment.25 Textualists dismiss the latter as “pure fantasy.”26 Consideration of the former, however, can be helpful in identifying which of many possible definitions should be assigned to a given term or which of two equally plausible interpretations should be given to a particular provision.27 These benefits are contingent upon “purpose” being “defined precisely” and “described as concretely as possible,” without resorting to “extrinsic sources such as legislative history or an assumption about the legal drafter’s desires.”28

Textualism’s aversion to legislative history is precedentially grounded and absolute. In Reading Law, Antonin Scalia and Bryan Garner note that throughout the eighteenth and nineteenth centuries, American law followed the no-recourse doctrine, which forbade consideration of legislative history in interpretive matters.29 Conversely, by the early 1980s the Supreme Court was citing legislative history in one hundred percent of its statutory cases.30 Apart from certain political and theoretical problems posed by courts’ consideration of legislative history, the authors assert that a monolithic legislative intent simply does not exist and that even if it did, it could not be found in the sources consulted by courts, e.g., legislative hearings, committee reports, and floor debates.31 That is because these materials reflect the views of individual legislators rather than the legislature as a whole.32 Additionally, the authors deride legislative history as increasingly performative and artificial—created not to inform fellow legislators but to persuade future courts—and warn that legislative history’s manipulability extends post-enactment, with courts free to pick and choose among a multitude of sources to achieve their desired ends.33

Textualists’ antipathy for legislative history is offset by their affinity for interpretive canons. Indeed, the stated aim of Reading Law is “to collect and arrange the valid canons . . . and to show how and why they apply to proper legal interpretation.”34 This reliance on canons is consistent with textualists’ commitment to contextually-informed meaning: “If the meaning of a text depends on the shared background conventions of the relevant linguistic community, then any reasonable user of language must know the assumptions shared by the speakers and the intended audience. With respect to legal instruments such as statutes, this premise suggests that . . . interpreters should consult the assumptions of a reasonable person conversant with legal conventions,” which include interpretive canons.35 Canons, thus, serve as communicative touchstones between judges and legislators, providing stability and efficiency in the construction of meaning.36

Scalia and Garner acknowledge criticisms “that textualism, with its cross-cutting canons and competing principles, does not always provide a clear answer [to interpretive questions] and hence can be subjectively manipulated.”37 Nevertheless, they contend that “there is a world of difference between an objective test (the text)—which sometimes provides no clear answer, thus leaving the door open to judicial self-gratification—and tests that invite judges to say that the law is what they think it ought to be” by considering extratextual sources or potential societal impacts.38

Having heard from the method’s proponents, the next Part will consider textualism from the standpoint of its detractors.

II. Criticisms of Textualism

Recall that one of the main arguments in favor of textualism is that it best comports with separation of powers principles. By giving primacy to the statutory text and eschewing consideration of extratextual materials, textualist judges ostensibly fulfill their duty to interpret the law as enacted.

However, the Supreme Court has made clear that bicameralism and presentment are only applicable to congressional action altering persons’ legal rights and duties.39 Because extratextual materials, by themselves, do not seek to alter legal rights or duties, “[c]onsulting them does not violate bicameralism and presentment any more than would consulting a dictionary.”40 The separation of powers justification for textualism is therefore debatable.

Equally questionable is the contention that textualism “promote[s] clearer drafting”41 and “discourage[s] legislative free-riding.”42 This argument presumes that Congress is aware of and seeks to draft statutes consistent with the prevailing interpretive preferences of the Supreme Court. Under that theory, the Court’s embrace of textualism should lead Congress to “be more diligent and precise in its drafting” on the basis that the text and the text alone is what matters for interpretive purposes.43

The implication that statutory ambiguities are the result of haphazard drafting that can be redressed by greater attention to detail may be inaccurate. It has been observed that “[t]he vast majority of the Court’s difficult statutory interpretation cases involve statutes whose ambiguity is either the result of deliberate legislative choice to leave conflictual decisions to agencies or the courts, or the result of social or legal developments the most clairvoyant legislators could not have foreseen.”44 If true, textualism’s effects on the legislative drafting process stand to be negligible.

A distinct but related assumption is that Congress is aware of and relies on certain interpretive canons when drafting statutes.45 This supposition is belied by empirical data.46 A recent survey of congressional staffers with legislative drafting responsibilities revealed that they were largely unfamiliar with and seldom followed textualism’s preferred canons.47 Conversely, the study found that “legislative history was emphatically viewed by almost all of [the] respondents—Republicans and Democrats, majority and minority—as the most important drafting and interpretive tool apart from [statutory] text.”48 Thus, the realities of the legislative drafting process indicate that textualists’ favorite canons are either essentially unknown to or actively ignored by Congress.

Congress’s apparent disregard of the canons is problematic for textualists, who contend the canons are necessary to “hedge in” judicial discretion.49 But the canons’ portrayal as neutral guidelines constraining judicial self-indulgence is subject to three counterarguments. First, given their number, multiple canons are likely to apply in a given case, allowing judges, consciously or unconsciously, to pick and choose amongst the canons to achieve whichever outcome aligns with their personal policy preferences.50 Second, the canons “are saturated with norms and pervasively demand normative judgments from judges,” which confers the sort of open-ended discretion that textualists purport to oppose.51 Third, by rendering legislative history effectively off limits, the canons allow judges to discount the views, however diverse and disjointed, of the people’s democratically elected representatives as expressed in an array of contexts outside the statutory text, thus increasing the discretion available to judges under the first and second points.52 Textualism’s potential to expand rather than curtail judges’ discretion is not limited to the interpretive canons, however.

A fundamental precept of textualism, which includes but is not limited to the “valid” interpretive canons, is that it “will curb—even reverse—the tendency of judges to imbue authoritative texts with their own policy preferences.”53 This claim appears dubious considering that textualist methodology “requires as many as twelve important choices, many of which have subchoices—and even sub-subchoices.”54 At the broadest level, these choices include deciding what linguistic evidence should be consulted, which interpretive precedents are binding, and how conflicts between statutory provisions should be resolved.55 It is noted that “these choices create numerous flashpoints in which a judge [endeavoring to apply textualist principles] may, often unconsciously,” make decisions based on personal policy preferences rather than fidelity to a single, unified theory of textualism, which at present does not exist.56 Although textualism has been promoted as an interpretive theory that “will provide greater certainty in the law, and hence greater predictability and greater respect for the rule of law,”57 in its current form, textualism “does not guarantee predictable, transparent, neutral interpretations of federal statutes.”58

While conceding that “willful judges might use textualism to achieve the ends they desire,” the theory’s proponents assert that, as a general matter, “textualism is not well designed to achieve ideological ends,” i.e., socially or politically conservative outcomes.59 This is a point of intense scholarly debate. Whereas some studies find that textualism is associated with a greater propensity for liberal outcomes,60 others conclude that textualism yields predictably conservative results.61 Still others draw a distinction between theory and practice, observing that while “there is nothing inherently conservative about textualism as a theory of statutory interpretation,” “the broader practice of textualism surely is [conservative].”62 Nevertheless, “textualism is widely regarded as a politically conservative methodology”63 that “tends to produce legal outcomes consistent with conservative policy preferences.”64

III. Textualism as Applied to Employment Discrimination Law

Textualism’s strong and enduring association with conservative policy outcomes has led many antidiscrimination scholars to oppose textualism as a method of statutory interpretation.65 This is true notwithstanding its association with employee-favorable results in individual cases, as such outcomes are dismissed as isolated anomalies or errant applications rather than recurring indicators of a broader, pro-employee trend.66 Yet, a review of the Supreme Court’s major employment discrimination cases over the past thirty years reveals that textualism exhibits a consistent, positive correlation with employee-favorable outcomes.

Before examining the cases, a few notes regarding methodology are warranted. First, the dataset is not comprehensive. Rather, the seventeen cases discussed below are a subset of a subset of Supreme Court decisions issued between January 1995 and June 2025 interpreting federal employment nondiscrimination statutes. The dataset was compiled by consulting the Equal Employment Opportunity Commission’s listing of select Supreme Court decisions, which is incomplete to the extent it collects only “some of the [Court’s] most significant” employment discrimination decisions.67 The resulting fifty-nine cases were then reviewed for explicit applications of textualism, with seventeen cases selected for inclusion in the dataset based on their extensive discussion of and reliance on textualist principles. Second, the analysis is not and does not purport to be a scientific study. The absence of explicit parameters for a case’s inclusion in or omission from the dataset makes replicability difficult and renders the dataset vulnerable to criticisms that it is both over- and underinclusive. Third, the use of a binary classification system to categorize cases as either pro-employer or pro-employee discounts the fact that many Supreme Court decisions are nuanced and defy easy categorization. None of these methodological shortcomings are problematic, however, as this Part does not seek to analyze or categorize the decisions with experimental precision but instead to demonstrate, as a general matter, textualism’s strong correlation with employee-favorable outcomes.

Of the seventeen cases comprising the dataset, five were associated with pro-employer results, ten were associated with pro-employee results, and the remaining two cases were indeterminate.

A. Indeterminate Outcomes

In National Railroad Passenger Corp. v. Morgan, the Supreme Court held that Title VII precludes recovery for discrete acts of discrimination or retaliation that occur outside the statutory time period whereas a hostile work environment claim may consider conduct outside the statutory time period provided at least one of the acts contributing to the hostile environment occurred within the statutorily-prescribed timeframe.68 Writing for the majority, Justice Thomas began the opinion by identifying Title VII’s text as the “most salient source for guidance” in resolving the dispute.69 He then applied the ordinary-meaning canon and mandatory/permissive canon to the relevant provision of Title VII to specify the exact parameters of the Court’s inquiry.70 As part of his analysis, Justice Thomas declined the plaintiff’s invitation to read a certain term in isolation, opting instead to consider the phrase in the context of Title VII generally.71 He again relied on the whole-text canon in concluding that the presence of explicit damages limitations in certain provisions of Title VII indicates that the absence of such limitations in other provisions of the statute reflected a deliberate drafting decision by Congress.72 This decision is classified as indeterminate owing to the split nature of the opinion, a pro-employee ruling on the hostile environment claim and a pro-employer ruling on the discrimination and retaliation claims.

The second case’s indeterminate status likewise stems from the split nature of the Court’s decision. In Burlington Northern & Santa Fe Railway Co. v. White, the Court held that Title VII’s “antiretaliation provision extends beyond workplace-related or employment-related retaliatory acts and harm” so as to confer greater protections on employees, while simultaneously imposing a materiality requirement on such claims in an ostensible win for employers.73 The Court began by examining the relevant statutory provisions as informed by the whole-text and presumption of consistent usage canons.74 It then considered statutory, but not legislative, purpose consistent with the supremacy-of-text principle and found that Title VII’s “purpose reinforces what language already indicates.”75

B. Pro-Employer Outcomes

In Sutton v. United Air Lines, the Supreme Court held that the effects of corrective and mitigating measures must be considered in determining whether an individual is “disabled” under the Americans with Disabilities Act.76 After noting the dissent’s reliance on the ADA’s legislative history to reach the opposite conclusion, the majority determined that the text foreclosed such an interpretation.77 The Court observed that “three separate provisions of the ADA, read in concert,” supported the majority’s construction, implicitly invoking the whole-text canon.78 The referenced provisions, moreover, included the “findings” section of the ADA’s prologue, the consideration of which was permissible under the prefatory-materials canon because it was for the limited purpose of clarifying ambiguous text.79 The Court also consulted contemporaneous dictionaries to determine the meaning of a term that was not defined in the statute.80 Sutton is classified as pro-employer because it had the effect of narrowing the ADA’s coverage.

A few years later, Justice O’Connor authored a second opinion interpreting the ADA’s “disability” provision, although this time the decision was unanimous. The Toyota Motor Manufacturing v. Williams Court held that to be protected by the ADA, “an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives.”81 Moreover, individualized proof of such limitations is required, such that a general diagnosis of impairment is insufficient to render someone “disabled” under the ADA.82 To reach these conclusions, the Court consulted contemporaneous dictionaries to ascertain the meaning of common terms not defined in the statutory text.83 The Court also relied on the related-statutes and prior-construction canons84 as well as an explicit text-based interpretive prescription from Congress.85 Williams is classified as pro-employer based on its construing the text “to create a demanding standard for qualifying as disabled,” which again had the effect of narrowing the ADA’s coverage.86

In the 2009 case of Gross v. FBL Financial Services, the Court held that to prevail under the Age Discrimination in Employment Act “a plaintiff must prove that age was the ‘but-for’ cause of the” adverse employment action.87 Justice Thomas, writing for the majority, declined the employee’s invitation to construe the ADEA consistent with Title VII, under which plaintiffs need only show that a protected characteristic was a motivating factor.88 In doing so, the Court relied on the supremacy-of-text principle and omitted-case canon to underscore the significant textual differences between the two statutes.89 The Court then applied the whole-text, ordinary-meaning, and related-statutes canons to interpret the ADEA’s relevant statutory provisions, at one point consulting contemporaneously-published dictionaries to determine the meaning of a key term.90 Gross is classified as pro-employer because the Court’s ruling that mixed-motives claims are not available under the ADEA requires plaintiffs to satisfy the more demanding but-for causation standard.91

Relying on Gross, the Supreme Court thereafter held in University of Texas Southwestern Medical Center v. Nassar that Title VII retaliation claims are likewise subject to a but-for causation standard.92 The Court concluded that Title VII’s less demanding motivating-factor standard is not available for retaliation claims, only claims alleging discrimination based on race, color, religion, sex, or national origin.93 Justice Kennedy, writing for the majority, noted that although Title VII’s motivating-factor provision “begins by referring to ‘unlawful employment practices,’” defined elsewhere to include retaliation, it “then proceeds to address only five of the seven prohibited discriminatory actions—actions based on the employee’s status, i.e., race, color, religion, sex, and national origin.”94 Consistent with the general/specific and omitted-case canons, this distinction indicated that Congress intended to limit the motivating-factor provision’s scope to status-based claims.95 The Court further observed that “when Congress wrote the motivating-factor provision in 1991, it chose to insert it as a subsection within” Title VII’s ban on status-based discrimination, suggesting it should not be interpreted to cover retaliation claims according to the scope-of-subparts canon.96 Moreover, Justice Kennedy impliedly invoked the title-and-headings canon in finding that “the title of the section of the 1991 Act that created [the motivating-factor provision] . . . also indicates that Congress determined to address only claims of status-based discrimination, not retaliation.”97 The whole-text, related-statutes, and general-terms canons provided further support for the Court’s holding.98 Nassar is classified as pro-employer for the same reason as Gross.

Most recently, the Court held in Stanley v. City of Sanford that retirees cannot bring disability-related discrimination claims for actions postdating their employment.99 Specifically, to prevail under the ADA, “a plaintiff must plead and prove that she held or desired a job, and could perform its essential functions with or without reasonable accommodation, at the time of an employer’s alleged act of disability-based discrimination.”100 Justice Gorsuch, writing for the majority, began his analysis by invoking the grammar and whole-text canons.101 The use of present-tense verbs, both in the relevant provision and the statute generally, indicated that the ADA’s “focus [is] on current and prospective employees—not retirees.”102 Moreover, the fact that a separate ADA provision could be read to encompass retirees suggested that the provisions’ varying scopes reflected a deliberate drafting decision by Congress to protect retirees in some instances but not others.103 Stanley is classified as pro-employer because, like Sutton and Williams, it served to narrow the ADA’s coverage.

C. Pro-Employee Outcomes

In Walters v. Metropolitan Educational Enterprises, the Supreme Court held that, for the purpose of calculating whether an employer “has” fifteen or more employees so as to be subject to Title VII, an employer “has” an employee on any day the employer maintains an employment relationship with the individual.104 Justice Scalia, writing on behalf of a unanimous Court, began the opinion by noting that “in the absence of an indication to the contrary, words in a statute are assumed to bear their ordinary, contemporary, common meaning.”105 He then observed that “in common parlance, an employer ‘has’ an employee if he maintains an employment relationship with that individual,” citing dictionary definitions from 1950, 1992, and 1993.106 Conversely, in focusing on the number of employees that an employer was compensating on a particular day, the employer’s proposed test violated the supremacy-of-text principle.107 Walters is classified as pro-employee because the existence of an employment relationship is a comparatively simple means of determining whether an employer is subject to Title VII’s antidiscrimination mandate, whereas the alternate test would have “turn[ed] the coverage determination into an incredibly complex and expensive factual inquiry” to the detriment of workers.108

Within months of construing Title VII’s definition of “employer,” the Court had occasion to interpret the statute’s definition of “employees.” The Robinson v. Shell Oil Company Court held that the term “employees,” as used in Title VII’s anti-retaliation provision, includes former employees.109 Justice Thomas, writing for a unanimous Court, averred that the “first step in interpreting a statute is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute.”110 He explained that “the plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.”111 Consideration of these factors led Justice Thomas to conclude that the term “employees” was ambiguous as to whether it excluded former employees.112 In resolving this ambiguity, the Court observed that “several sections of the statute plainly contemplate that former employees will make use of the remedial mechanisms of Title VII” and noted that excluding former employees from the statute’s coverage threatened to undermine the antiretaliation provision’s primary purpose: “Maintaining unfettered access to statutory remedial mechanisms.”113 Robinson is classified as pro-employee owing to its expansive construction of the term “employees,” which afforded more workers the protections of Title VII’s antiretaliation provision.

Perhaps no twentieth-century case exemplified textualism’s pro-employee potential more than Oncale v. Sundowner Offshore Services.114 In holding that Title VII prohibits same-sex sexual harassment, Justice Scalia, on behalf of a unanimous Court, acknowledged that “male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII.”115 But, Justice Scalia observed, “statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”116 The Court’s explicit disregard of legislative intent in favor of applying the statute’s unambiguous text to reach a controversial, pro-employee outcome provided an early preview of textualism’s potentially transformative impact on employment discrimination law.117

In the 2003 case of Desert Palace v. Costa, the Court held that direct evidence of discrimination is not required in mixed-motive cases under Title VII.118 Writing for a unanimous Court, Justice Thomas observed that the relevant statutory provision “does not mention, much less require, that a plaintiff make a heightened showing through direct evidence” in order to obtain a mixed-motive instruction.119 The decision relied on the interpretive-direction, whole-text, and related-statutes canons as well as the presumption of consistent usage and supremacy-of-text principle.120 Costa is classified as pro-employee because it declined to impose a heightened proof requirement on plaintiffs in mixed-motive cases.

The dataset’s only pro-employee outcome in a disparate-impact case was the 2010 decision of Lewis v. Chicago.121 Justice Scalia, writing on behalf of a unanimous Court, held that “a plaintiff who does not file a timely charge [of discrimination] challenging the adoption of a[n] [employment] practice [causing a disparate impact under Title VII] . . . may [still] assert a disparate-impact claim in a timely charge challenging the employer’s later application of that practice.”122 The Court faulted the Seventh Circuit’s transference of disparate-treatment precedent to disparate-impact claims, concluding that “even if the two theories were directed at the same evil, it would not follow that their reach is therefore coextensive.”123 Consistent with the supremacy-of-text principle and surplusage canon, Justice Scalia declared, “If the effect of applying Title VII’s text is that some claims that would be doomed under one theory will survive under the other, that is the product of the law Congress has written.”124 Hence, it was not the Court’s responsibility to “rewrite the statute so that it covers only what we think is necessary to achieve what we think Congress really intended.”125 Lewis is classified as pro-employee because it allows timely-filed disparate impact claims to proceed even if disparate treatment claims predicated on the same practice are time barred.

Five years later, Justice Scalia wrote what would be his last majority opinion in an employment law case.126 In EEOC v. Abercrombie & Fitch Stores, the Court held that “a job applicant seeking to prove a Title VII disparate treatment claim need only show that the need for a religious accommodation was a motivating factor in the prospective employer’s adverse decision, and need not show that the employer actually knew that the applicant’s practice was a religious practice that required an accommodation.”127 According to Justice Scalia, the problem with the “actual knowledge” standard advocated by the company is “one that inheres in most incorrect interpretations of statutes: It asks us to add words to the law to produce what is thought to be a desirable result. That is Congress’s province.”128 Conversely, the Court’s motivating-factor standard found support in the related-statutes and interpretive-direction canons.129 Abercrombie & Fitch is classified as pro-employee because it forecloses the possibility that employers can decline to hire an applicant based on an unconfirmed suspicion that the applicant requires a religious accommodation.

Any doubts regarding textualism’s ideological objectivity were ostensibly put to rest in the 2020 case of Bostock v. Clayton County, which held that discrimination based on sexual orientation or gender identity constitutes actionable sex discrimination under Title VII.130 The opinion’s opening paragraphs recite several key tenets of textualism:

Those who adopted the Civil Rights Act [of 1964] might not have anticipated their work would lead to this particular result. Likely, they weren’t thinking about many of the Act’s consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees. But the limits of the drafters’ imagination supply no reason to ignore the law’s demands. When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.

. . . .

This Court normally interprets a statute in accord with the ordinary public meaning of its terms at the time of its enactment. After all, only the words on the page constitute the law adopted by Congress and approved by the President. If judges could add to, remodel, update, or detract from old statutory terms inspired only by extratextual sources and our own imaginations, we would risk amending statutes outside the legislative process reserved for the people’s representatives. And we would deny the people the right to continue relying on the original meaning of the law they have counted on to settle their rights and obligations.

With this in mind, our task is clear. We must determine the ordinary public meaning of Title VII’s command that it is “unlawful for an employer . . . to discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin.”131

Justice Gorsuch, writing for the Bostock majority, found this to be a fairly simple task.132 He began by consulting contemporaneous dictionaries to ascertain the meaning of various terms.133 In particular, “because of” was found to impose a but-for causation standard, whereby an employer’s reliance on a protected characteristic is sufficient to trigger liability even if other factors also contributed to the adverse action.134 Given that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual” in part because of sex, Justice Gorsuch found that the plaintiffs had cognizable discrimination claims under Title VII.135

Textualism, moreover, rendered the employers’ arguments unpersuasive. First, the fact that Congress had considered numerous proposals to add sexual orientation and, more recently, gender identity to Title VII’s list of protected traits was deemed irrelevant: “All we can know for certain is that speculation about why a later Congress declined to adopt new legislation offers a ‘particularly dangerous’ basis on which to rest an interpretation of an existing law a different and earlier Congress did adopt.”136 Second, the point that few people in 1964 would have expected Title VII to protect gay and transgender persons was immaterial to the Court’s analysis: “Admittedly, the employers take pains to couch their argument in terms of seeking to honor the statute’s ‘expected applications’ rather than vindicate its ‘legislative intent.’ . . . However framed, the employer’s logic impermissibly seeks to displace the plain meaning of the law in favor of something lying beyond it.”137 Third, the employer's invocation of the no-elephants-in-mouseholes canon, which provides that “Congress does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions,” was found inapt: “We can’t deny that today’s holding . . . is an elephant. But where’s the mousehole? Title VII . . . is written in starkly broad terms . . . [that] virtually guaranteed unexpected applications would emerge over time.”138 Finally, the supposed undesirable policy consequences that stood to flow from a pro-employee ruling were dismissed as antithetical to textualism: “Gone here is any pretense of statutory interpretation; all that’s left is a suggestion we should proceed without the law’s guidance to do as we think best. But that’s an invitation no court should ever take up.”139 Bostock is classified as pro-employee because it recognizes that discrimination based on sexual orientation or gender identity necessarily entails discrimination based on sex.

In the 2023 case of Groff v. DeJoy, the Court held that to justify denial of a religious accommodation request under Title VII, “an employer must show that the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business,” disavowing the “more than a de minimis cost” standard utilized by many lower courts.140 Justice Alito, on behalf of a unanimous Court, began by acknowledging the primacy of the statutory text.141 He then proceeded to consult contemporaneous dictionaries to determine the meaning of a key statutory term: “undue hardship.”142 In explaining how Title VII’s newly-clarified “undue hardship” test should be applied, the Court invoked variations of the harmonious-reading canon and the presumption against ineffectiveness.143 Groff is classified as pro-employee because it clarified that Title VII’s “undue hardship” provision requires greater accommodation of employees’ religious practices than was implied by the Court’s precedent.

The following year, the Court held that an employee challenging a discriminatory job transfer under Title VII need only show “some harm,” abrogating the heightened-harm requirement imposed by various circuits.144 Writing for the majority in Muldrow v. City of St. Louis, Justice Kagan observed that nothing in Title VII’s text requires that the harm incurred be significant, serious, or substantial, so that “[t]o demand ‘significance’ is to add words . . . to the statute Congress enacted.”145 Nor could the employer’s policy concerns supersede the plain and unambiguous text: “[E]ven supposing the [employer]’s worst predictions come true, that would be the result of the statute Congress drafted . . . . Had Congress wanted to limit liability for job transfers to those causing a significant disadvantage, it could have done so. By contrast, this Court does not get to make that judgment.”146 Muldrow is classified as pro-employee because it found that discriminatory-transfer claims, and potentially disparate treatment claims generally, are not subject to a heightened-harm requirement.

Most recently, the Court held that majority-group plaintiffs are not subject to a heightened evidentiary standard under the burden-shifting framework of McDonnell Douglas Corp. v. Green,147 repudiating the “background circumstances” rule utilized by several circuits.148 Justice Jackson, writing for a unanimous Court in Ames v. Ohio Department of Youth Services, observed that “[a]s a textual matter, Title VII’s disparate-treatment provision draws no distinctions between majority-group plaintiffs and minority-group plaintiffs.”149 Rather, the statute speaks to “individuals” generally, such that “Congress left no room for courts to impose special requirements on majority-group plaintiffs alone.”150 Ames is classified as pro-employee because it confirmed that majority-group plaintiffs need not show background circumstances “support[ing] the suspicion that the defendant is that unusual employer who discriminates against the majority” in order to meet their prima facie burden under McDonnell Douglas.151

As this Part has shown, textualism is strongly correlated with pro-plaintiff outcomes in employment discrimination litigation. Of the seventeen cases comprising the dataset, two were indeterminate, five were associated with pro-employer results, and ten were associated with pro-employee results. Significantly, eight of the ten pro-employee decisions were authored by ideologically conservative Justices, with Justice Scalia writing four opinions, Justice Thomas authoring two opinions, and Justices Alito and Gorsuch each writing one opinion. Nor were these situations where one or two conservatives broke ranks to form a narrow majority with the Court’s liberals. Rather, seven of the ten decisions were unanimous, having won the support of all the Court’s conservatives. Modern textualism, thus, appears far more plaintiff friendly from a litigation standpoint and considerably less ideologically driven from a policy perspective than has long been assumed.

The Court’s decision in Ames v. Ohio Department of Youth Services is particularly noteworthy, as it suggests the Court may be prepared to abrogate “one of the most significant and pervasive obstacles to contemporary anti-discrimination enforcement[:]”152 McDonnell Douglas Corp. v. Green.153 Whereas plaintiffs wishing to challenge McDonnell Douglas may once have had reason to fear that textualism’s tenets would be overridden by its practitioners’ pro-employer inclinations, today such worries appear unfounded given the methodology’s association with employee-favorable results. Hence, it is likely only a matter of time before plaintiffs seek to overturn McDonnell Douglas.

IV. An Inflection Point in Employment Discrimination Law

McDonnell Douglas Corp. v. Green is rightly characterized as “the most important case in employment discrimination law.”154 It governs approximately 90% of cases and has been cited in approximately 58,000 court opinions, making it one of the most cited Supreme Court decisions of all time.155 First articulated in the context of a Title VII claim, McDonnell Douglas’s reach now extends far beyond the Civil Rights Act of 1964. Lower courts and administrative agencies apply it to claims arising under the Age Discrimination in Employment Act, the Americans with Disabilities Act, and discrimination claims predicated on 42 U.S.C. §§ 1981 and 1983.156 It is also used to analyze claims under state antidiscrimination statutes157 and federal civil rights laws outside the area of employment.158 Consequently, McDonnell Douglas’s abrogation would affect a sea change in employment discrimination law at both the state and federal levels, with significant ancillary impacts on civil rights laws generally.

McDonnell Douglas established a three-step burden-shifting framework for analyzing claims of intentional employment discrimination.159 First, the plaintiff must establish a prima facie case of discrimination.160 This requires “a plaintiff to prove [(a)] she is a ‘member of a protected class,’ [(b)] that she was ‘qualified’ for the position or that she met the employer’s ‘legitimate expectations,’ [(c)] that she suffered an ‘adverse action,’ and [(d)] either that she was treated differently than a ‘similarly-situated’ individual who was not in the protected class, or (in some circuits) that she can identify evidence that supports ‘an inference of discrimination.’”161 Once a prima facie case has been established, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the adverse action.162 The plaintiff is then given an opportunity to show that “the employer’s proffered explanation is unworthy of credence” or “that a discriminatory reason more likely motivated the employer.”163 The Supreme Court has described the McDonnell Douglas framework as “a sensible, orderly way to evaluate the evidence” in cases alleging intentional discrimination and has emphasized that its application “was never intended to be rigid, mechanized, or ritualistic.”164

Lower courts have been highly critical of McDonnell Douglas, notwithstanding its Supreme Court pedigree. As early as 1979, the First Circuit noted that the framework had “caused considerable difficulty for judges of all levels.”165 And as recently as 2023, the Eleventh Circuit acknowledged the “widespread misunderstandings about the limits of McDonnell Douglas.”166 The framework’s critics, moreover, range from newly-appointed district court judges167 to future Supreme Court Justices, with the latter averring that McDonnell Douglas “spawn[s] enormous confusion” and is “of limited value.”168

Scholarly criticism of McDonnell Douglas has been equally pointed.169 Ann McGinley, for example, has observed that “although the Supreme Court initially adopted the McDonnell Douglas approach to make it easier for plaintiffs to prove a prima facie case [of employment discrimination], the courts of appeals now use this construct to defeat plaintiffs’ claims.”170 Similarly, Deborah Widiss has argued that the “convoluted body of judge-made law known as McDonnell Douglas” routinely thwarts plaintiffs’ claims “even when there is ample evidence suggesting unlawful discrimination.”171 Katie Eyer has gone so far as to assert that McDonnell Douglas “represents one of the most significant and pervasive obstacles to contemporary anti-discrimination enforcement.”172

Specifically, Professor Eyer contends that lower courts apply a hyper-technical version of McDonnell Douglas that is often fatal to plaintiffs’ claims.173 She notes that “such analyses rarely focus on the factual question of whether or not discrimination occurred, [instead] substituting technical rules for fair consideration of whether discrimination took place.”174 Whereas the Supreme Court has explained that McDonnell Douglas is merely a procedural device,175 lower courts treat the framework’s associated rules as substantive legal requirements that plaintiffs must satisfy or risk having their claims dismissed.176 Professor Eyer writes that “through this case-by-case application of the technical McDonnell Douglas paradigm, the lower courts have effectuated a quiet revolution in anti-discrimination law, rendering it very difficult for victims of discrimination to seek relief.”177

Most relevant for the purposes of this Article is Sandra Sperino’s observation that, as originally articulated, the McDonnell Douglas framework has no basis in the statutory text.178 Regarding the prima facie case, Professor Sperino notes that Title VII does not contain an exception permitting discrimination against individuals on the basis of a protected trait so long as they lack the necessary job qualifications.179 Hence, requiring plaintiffs to prove that they were qualified for the relevant job ostensibly cannot be reconciled with the statutory text.180 Likewise, requiring rejected job applicants to show that the position in question remained open and the employer continued to seek applications from persons of the candidate’s qualifications has no corollary in the text of Title VII.181 Rather, “this prong was fashioned from the specific facts of the McDonnell Douglas case.”182 Modern variations of the prong seemingly fare no better to the extent they require extratextual comparator evidence demonstrating that similarly-situated individuals who did not share the plaintiff’s protected trait were treated more favorably.183

From a textual standpoint, the framework’s requirement that the employer articulate a legitimate, nondiscriminatory reason for the adverse action is equally problematic.184 As noted by Professor Sperino, “there is nothing within the text of Title VII that suggests it was designed to take away the employer’s ability to” take adverse actions “for no reason [consistent with the employment-at-will doctrine]; however, this is essentially what the McDonnell Douglas framework does.”185 She explains, “if an employer does not articulate a legitimate, nondiscriminatory reason for its conduct, the inference of discrimination created by plaintiff’s prima facie case is unrebutted,” and the employer is liable for discrimination.186 While acknowledging there may be sound policy bases to require that employers provide rationales for their adverse actions, “the operative language of Title VII does not mandate such a course.”187 Professor Sperino concludes her analysis by arguing that the McDonnell Douglas framework should be abandoned in favor of a standard comporting with Title VII’s statutory text.188

The Supreme Court may well heed Professor Sperino’s call. As discussed in Part III.C, the Court recently concluded that majority-group plaintiffs are not subject to a heightened evidentiary standard under the first step of McDonnell Douglas.189 Previously, some circuits190 had required majority-group plaintiffs, as part of establishing a prima facie case, to present evidence of “background circumstances” indicating that the defendant was the rare employer who discriminates against members of a majority group.191 Justice Jackson, writing for a unanimous Court in Ames v. Ohio Department of Youth Services, observed that “[a]s a textual matter, Title VII’s disparate-treatment provision draws no distinctions between majority-group plaintiffs and minority-group plaintiffs.”192 Rather, the statute speaks to “individuals” generally, such that “Congress left no room for courts to impose special requirements on majority-group plaintiffs alone.”193 Although limited to a single prong of the prima facie case as interpreted by fewer than half the Circuit Courts, Ames’s unanimous rejection of the background circumstances rule does not bode well for McDonnell Douglas generally. Indeed, two of the Justices signaled they would be willing to reconsider the framework altogether.194

Justice Thomas, writing a concurring opinion joined by Justice Gorsuch, declared that “in a case where the parties ask us to do so, I would be willing to consider whether the McDonnell Douglas framework is a workable and useful evidentiary tool.”195 After affirming that he joined the Court’s opinion in full, Justice Thomas explained that he was writing separately “to highlight the problems that arise when judges create atextual legal rules and frameworks": 

Judge-made doctrines have a tendency to distort the underlying statutory text, impose unnecessary burdens on litigants, and cause confusion for courts. The “background circumstances” rule—correctly rejected by the Court today—is one example of this phenomenon. And, the decision below involves another example: The Sixth Circuit analyzed Ames’s Title VII claim under the three-step framework developed by this Court in McDonnell Douglas Corp. v. Green. As with the “background circumstances” rule, the McDonnell Douglas framework lacks any basis in the text of Title VII and has proved difficult for courts to apply.196

Between their concurrence in Ames and their dissent from the denial of certiorari in Hittle v. City of Stockton,197 Justices Thomas and Gorsuch have expressed several concerns regarding McDonnell Douglas. First, after noting that the framework “is, at most, a procedural device, designed only to establish an order of proof and production when evaluating circumstantial evidence,” they observe that some courts incorrectly “treat McDonnell Douglas as a substantive legal standard that a plaintiff must establish to survive summary judgment or to ultimately prove a claim.”198 Second, they fault lower courts for proceeding as though the framework is the exclusive means by which plaintiffs may prove discrimination, emphasizing that McDonnell Douglas “is not the only way or even the best way to prove a claim.”199 Third, they argue the framework is incompatible with the summary-judgment standard set forth in Federal Rule of Civil Procedure 56, which “requires a court to grant summary judgment when the movant establishes that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”200 Conversely, the McDonnell Douglas framework “does not speak in terms of ‘genuine disputes’ regarding the facts. Instead, it speaks in terms of ‘proving’ facts ‘by the preponderance of the evidence,’” placing too great an evidentiary burden on plaintiffs.201 Fourth, Justices Thomas and Gorsuch underscore lower courts’ difficulty applying the framework, declaring they are “not aware of many precedents that have caused more confusion than” McDonnell Douglas.202 Most significantly, the duo asserts that the framework was “made out of whole cloth,” lacking any “basis in the text of Title VII or any other source of law.”203

Should a certiorari petition challenging the McDonnell Douglas framework be filed, there is every reason to believe that the Court would take up the case. Assuming Justices Thomas and Gorsuch are supportive, only two other Justices would need to vote aye for certiorari to be granted. And garnering those two additional votes should not be difficult. The Court’s other textualists204 would likely be receptive to the petition given that the framework has no grounding in the statutory text and thus appears to violate the tenets of bicameralism and presentment. Moreover, Justices frustrated by lower courts' misapplication of the framework and corresponding dismissal of otherwise viable claims may see the case as an opportunity to elucidate the framework’s correct application or potentially advocate for its wholesale abrogation. These factions are not mutually exclusive. Although the former may once have been associated with the Court’s conservatives and the latter the Court’s liberals, Justices Thomas and Gorsuch have invoked both rationales in pressing for reconsideration of McDonnell Douglas.205 Liberal Justices, likewise, have cited a dearth of textual support as a compelling justification for invalidating various judge-made rules and doctrines.206 It is therefore easy to imagine a cross-ideological coalition of Justices joining together to grant certiorari.

In the absence of a developed factual record, it is difficult to assess how the Court might ultimately rule in a case challenging McDonnell Douglas. Nevertheless, the question merits brief consideration, if only in the abstract. Justices theoretically likely to support abrogation on textual grounds include Barrett, Gorsuch, Kagan, Kavanaugh, and Thomas.207 Alternatively, those seemingly inclined to support abrogation on procedural grounds include Justices Gorsuch,208 Kagan,209 Kavanaugh,210 Sotomayor, 211 and Thomas.212 Thus, assuming Justices Gorsuch, Kagan, Kavanaugh, and Thomas are firmly in the anti-McDonnell Douglas camp, they would need the support of one additional Justice to attain a majority. Justice Barrett appears a likely candidate given that she clerked for Justice Scalia and has shown a deep commitment to textualist principles in her academic scholarship and judicial opinions.213 Likewise, Justice Sotomayor’s intolerance for seemingly biased, technical applications of the law suggests that she, too, might be inclined to repudiate McDonnell Douglas.214 And should a five-Justice majority emerge, it is possible Chief Justice Roberts would lend his support to give institutional legitimacy to the decision and avoid a scenario in which a narrow 5-4 majority strikes down a fifty-year-old precedent at the heart of employment discrimination law.215 Of course, given the Court’s recent propensity to reach unanimous decisions in employment discrimination cases, it is also possible the opinion would win the support of all nine Justices.216

The Supreme Court is unlikely to repudiate the McDonnell Douglas framework without articulating a new, text-based paradigm for evaluating disparate treatment claims. Presumably, the standard would require proof “that the plaintiff was subject to an unlawful employment practice specified in the [relevant] statute because of a protected trait or protected activity.”217 For example, in the context of Title VII, the paradigm “would require proof of (1) hiring, termination, compensation decisions, or other actions that affect the terms[, privileges,] or conditions of employment or that limit a plaintiff’s employment opportunities that are (2) taken because of (3)” the plaintiff’s race, color, religion, sex, or national origin.218

McDonnell Douglas’s demise would have profound consequences for employment discrimination law. When the Supreme Court announced its multi-step burden-shifting framework in 1973, this area of law was still in its infancy. Less than a decade had passed since Title VII’s enactment, and lower courts were only just beginning to establish a meaningful body of precedent. The Supreme Court’s sudden and inexplicable imposition of a new, atextual, evidentiary framework halted that early progress, leaving employment discrimination law in a state of arrested development for the next fifty years. Consequently, repudiating McDonnell Douglas would effectively reset the clock on employment discrimination jurisprudence to 1973, allowing the law to resume its development consistent with textualist principles.219

The implications for individual plaintiffs stand to be equally momentous. As early as 1979, Circuit Courts were warning that McDonnell Douglas was “caus[ing] considerable difficulty for judges of all levels.”220 This may partly explain why employment discrimination cases—which comprised the single largest category of federal civil litigation in 1979—plunged by forty percent over the next several decades.221 Faced with the uncertainty wrought by McDonnell Douglas and the hardships they would encounter thereunder, prospective plaintiffs may have opted to forego litigation in favor of other, less daunting remedies.222 Likewise, the confusion engendered by McDonnell Douglas may partly explain the stark disparity in plaintiffs’ win rates over the same period, with employment discrimination plaintiffs prevailing in only 15% of cases compared to a 51% win rate for all other plaintiffs.223 In seeking to flesh out the Supreme Court’s new framework, lower courts seemingly developed a series of rules that, over time and in aggregate, have significantly disadvantaged plaintiffs. Although McDonnell Douglas’s role in deterring employment discrimination litigation and depressing plaintiff win rates cannot be isolated from these broader trends, it would blink reality to deny that the framework was a factor, perhaps even the primary factor in rendering employment discrimination litigation something of a quixotic quest for plaintiffs.

General litigation trends aside, a 2019 survey found that plaintiffs’ win rates in the specific context of McDonnell Douglas are even worse than that of employment discrimination claims generally: “[I]n a recent survey of three months of Court of Appeals decisions invoking the McDonnell Douglas paradigm, fifty-six of sixty-three decisions resulted in a total loss for the plaintiff.”224 This equates to a McDonnell Douglas-adjusted win rate of just 11%. “While th[e] [survey] is far from a scientific sample, and dismissal may have been proper in some cases, it is evident that in many instances application of a technical version of McDonnell Douglas resulted in the dismissal of cases in which a reasonable jury could have concluded that discrimination occurred.”225 This finding aligns with qualitative criticism from scholars that “although the Supreme Court initially adopted the McDonnell Douglas approach to make it easier for plaintiffs to prove a prima facie case, the courts of appeals now use this construct to defeat plaintiffs’ claims.”226 It also comports with Justices Thomas and Gorsuch’s observation that, as applied, the McDonnell Douglas framework imposes an undue evidentiary burden on plaintiffs.227

In Reading Law, Antonin Scalia and Bryan Garner address the “slander[ous]” claim that textualism “is a device calculated to produce socially or politically conservative outcomes.”228 They contend that textualism cannot reliably be invoked to achieve ideological ends given its focus on a single objective criterion, i.e., the statutory text.229 Rather, to the extent a textualist interpretation of a statute can be said to yield a conservative or liberal outcome, it will result from the statute’s passage during a conservative or liberal session of Congress.230 This means that “a textualist reading will sometimes produce ‘conservative’ outcomes, sometimes ‘liberal’ ones.”231 As applied to McDonnell Douglas, textualism stands to yield a decidedly pro-plaintiff outcome: freeing employees from a hyper-technical burden-shifting framework that obfuscates the relevant inquiry and allows otherwise actionable discrimination to go unremedied.

Conclusion

Owing to its strong and enduring association with conservative policy outcomes, many employment discrimination scholars oppose textualism as a method of statutory interpretation. This orthodoxy persists notwithstanding textualism’s association with employee-favorable results in individual cases, as such outcomes are dismissed as isolated anomalies or errant applications rather than recurring indicators of a broader, pro-employee trend. Yet, a review of the Supreme Court’s major employment discrimination cases over the past thirty years reveals that textualism exhibits a consistent, positive correlation with employee-favorable outcomes.

The Court’s most recent pro-employee decision is particularly noteworthy, as it suggests the Justices may be prepared to abrogate a case that has bedeviled employment discrimination plaintiffs for more than half a century: McDonnell Douglas Corp. v. Green. Whereas plaintiffs wishing to challenge McDonnell Douglas may once have had reason to fear that textualism’s tenets would be overridden by its practitioners’ pro-employer inclinations, today such worries appear unfounded. Thus, it is likely only a matter of time before plaintiffs seek to overturn McDonnell Douglas. At that point, the Court will have an opportunity to invalidate an atextual evidentiary framework in favor of a return to the statutory text. In doing so, the Court would definitively affirm what thirty years of precedent already suggests—that textualism can serve as a pro-employee force in employment discrimination law.

• Elena Kagan, The Scalia Lecture: A Dialogue with Justice Elena Kagan on the Reading of Statutes, YouTube (Nov. 17, 2015) (video at 8:29) https://www.youtube.com/watch?v=dpEtsz‌FT0Tg&t=516s. Contra West Virginia v. EPA, 597 U.S. 697, 779 (2022) (Kagan, J., dissenting) (“Some years ago, I remarked that ‘we’re all textualists now.’ It seems I was wrong.”).
• See Jeremy Heisler et al., States—The Final Frontier: How State Law and State Courts Can Provide Avenues for Justice and Resist the U.S. Supreme Court’s “Lochner Lite” Anti-Employee and Anti-Consumer Agenda, 72 Lab. L.J. 125, 128 (2021) (“[T]he Court has used ‘fair reading’ and ‘textualism’ as devices to smuggle in subjective pro-business, anti-employee rulings.”). But see Katie Eyer, Symposium: Progressive Textualism and LGBTQ Rights, SCOTUSblog (June 16, 2020), https://www.scotusblog.com/‌2020/06/symposium-progressive-textualism-and-lgbtq-rights/ (“There are thus reasons to believe that if we want employees of any kind to have access to meaningful discrimination claims, progressive textualism will be important.”).
• William N. Eskridge, Jr., The New Textualism and Normative Canons, 113 Colum. L. Rev. 531, 551 (2013) (reviewing Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts (2012)).
• Catherine L. Fisk, The Last Article About the Language of ERISA Preemption? A Case Study of the Failure of Textualism, 33 Harv. J. on Legis. 35, 83 (1996).
• Lawrence Baum & James J. Brudney, Two Roads Diverged: Statutory Interpretation by the Circuit Courts and Supreme Court in the Same Cases, 88 Fordham L. Rev. 823, 827–28, 841, 845 (2019) (considering decisions interpreting the National Labor Relations Act, Fair Labor Standards Act, Employee Retirement Income Security Act, Age Discrimination in Employment Act, and Title VII, among others).
• William N. Eskridge, Jr. & Victoria F. Nourse, Textual Gerrymandering: The Eclipse of Republican Government in an Era of Statutory Populism, 96 N.Y.U. L. Rev. 1718, 1721 (2021).
• Cf. Catherine L. Fisk, A Pandemic of Division: Finding Justice at Work in Challenging Times, 57 U.S.F. L. Rev. 1, 10 (2022).
• For a discussion of how the Supreme Court’s transition from purposivism to textualism has affected employment discrimination law, see Stephen M. Rich, A Matter of Perspective: Textualism, Stare Decisis, and Federal Employment Discrimination Law, 87 S. Cal. L. Rev. 1197, 1202 (2014) (“[T]extualist interpretive methods have undermined both the substance and rationales of prior [purposivist] decisions without expressly overruling them, thus eroding the predictability, consistency, and internal rationality of this body of law.”).
• Baum & Brudney, supra note 5, at 827.
• Sandra F. Sperino, McDonnell Douglas: The Most Important Case in Employment Discrimination Law (2018).
• 411 U.S. 792 (1973).
• Katie Eyer, The Return of the TechnicalMcDonnell Douglas Paradigm, 94 Wash. L. Rev. 967, 967 (2019).
• Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 56 (2012). As observed by Anita Krishnakumar, “there is no single document, or ‘bible,’ that sets forth textualism’s interpretive philosophy—although some members of the Court have treated Justice Antonin Scalia’s 2012 book, Reading Law, almost as a textualist ‘bible.’” Anita S. Krishnakumar, Textualism in Practice, 74 Duke L.J. 573, 577 (2024).
• John F. Manning, Textualism and the Equity of the Statute, 101 Colum. L. Rev. 1, 71 (2001).
• See Frank H. Easterbrook, Text, History, and Structure in Statutory Interpretation, 17 Harv. J.L. & Pub. Pol’y 61, 63–64 (1994).
• Scalia & Garner, supra note13, at xxviii, 9–10.
• John F. Manning, Textualism as a Nondelegation Doctrine, 97 Colum. L. Rev. 673, 687–88 (1997).
• Scalia & Garner, supra note 13, at 22, 33.
• Id. at 33.
• Antonin Scalia, Common-Law Courts in a Civil Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A Matter of Interpretation: Federal Courts and the Law 3, 37 (1997); see also Easterbrook, supra note 15, at 64 (“Because interpretation is a social enterprise, becausewords have no natural meanings, and because their effect lies in context, we must consult these contexts.”).
• John F. Manning, What DividesTextualists from Purposivists?, 106 Colum. L. Rev. 70, 78 (2006); see also Scalia & Garner, supra note 13, at xxvii (“Neither written words nor the sounds that the written words represent have any inherent meaning. Nothing but conventions and contexts cause a symbol or sound to convey a particular idea.”).
• Scalia & Garner, supra note 13, at 69–77.
• Id. at 78–92.
• Id. at 20.
• Id. at 20, 30, 56, 432.
• Id. at 376. Judge Frank Easterbrook separately describes legislative intentas “a fiction.” Id. at xxii.
• Id. at 56.
• Id. at 56–57.
• Id. at 369; see also Krishnakumar, supra note 13, at 577 (“[S]ome members of the Court have treated Justice Antonin Scalia’s 2012 book, Reading Law, almost as a textualist ‘bible.’”).
• Scalia & Garner, supra note 13, at 374.
• Id. at 374–76.
• Id. at 376.
• Id. at 376–78.
• Id. at 9.
• John F. Manning, The Absurdity Doctrine, 116 Harv. L. Rev. 2387,2467 (2003); see also Cass R. Sunstein, Interpreting Statutesin the Regulatory State, 103 Harv. L. Rev. 405, 454 (1989) (asserting interpretive canons “orient judicialreaders to the textin order to help them to ascertain its meaning in the particular case”); Lawrence B. Solum, The Interpretation-Construction Distinction, 27 Const. Comment. 95, 113 (2010) (“Canons of interpretation are rules of thumb–they point judges and other legal actors to facts about the way language works and to reliable procedures for making inferences about linguistic meaning.”); cf. Frank H. Easterbrook, Statutes’ Domains, 50 U. Chi. L. Rev. 533, 540 (1983) (describing interpretive canons “as off-the-rack provisions that spare legislators the costs of anticipating all possible interpretive problems and legislating solutions for them”).
• Manning, supra note 14, at 96.
• Scalia & Garner, supra note 13, at 22.
• Id.
• Immigration & Naturalization Serv. v. Chadha, 462 U.S. 919, 951–52 (1983). In Chadha, the Court observed that “not every action taken by either House [of Congress] is subject to the bicameralism and presentment requirements of Art[icle] I.” Id. at 952. Rather, the requirements apply to congressional actions “contain[ing] matter which is properly . . . regarded as legislative in its character and effect.” Id. Accordingly, the one-House veto at issue in Chadha was subject to bicameralism and presentment because it “had the purpose and effect of altering the legal rights, duties and relations of persons.” Id. at 952–59.
• WilliamN. Eskridge, Jr., The New Textualism, 37 UCLA L. Rev. 621, 672 (1990).
• Scalia & Garner, supra note13, at 51.
• Id. at xxviii.
• Eskridge, supra note 40, at 677; see also Scalia & Garner, supra note 13, at 61 (“The canons influence not just how courtsapproach texts but also the techniques that legal drafters follow in preparing those texts.”).
• Eskridge, supra note 40, at 677.
• Id. at 679–81; see also Finley v. United States, 490 U.S. 545, 556 (1989)(“What is of paramount importance is that Congress be able to legislate against a background of clear interpretive rules, so that it may know the effect of the language it adopts.”).
• Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside—An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part I, 65 Stan. L. Rev. 901 (2013).
• Compare Gluck & Bressman, supra note 46, at 924–64 (analyzing congressional use of the textual and substantive canons), with Scalia & Garner, supra note 13, at 53–339 (listing “valid” canons).
• Gluck & Bressman, supra note 46, at 965.
• Scalia & Garner, supra note 13, at xxiii (quoting Judge Frank H. Easterbrook).
• Eskridge, supra note 3, at 536, 540–51.
• Id. at 537, 552–67.
• Id. at 538–40, 567–75.
• Scalia & Garner, supra note 13, at xxviii. In response to criticism that textualism “can also be subjectively manipulated,” the authors assert “there is a world of difference between an objective test (the text)—which sometimes provides no clear answer, thus leaving the door open to judicial self-gratification—and tests that invite judges to say that the law is what they think it ought to be.” Id. at 22.
• William N. Eskridge, Jr. et al., Textualism’s Defining Moment, 123 Colum. L. Rev. 1611, 1623 (2023); see also Cary Franklin, Living Textualism, 2020 Sup. Ct. Rev. 119, 126 (2020) (contending that “much of the work . . . in textualist opinions . . . takes place at . . . shadow decision points: generally unacknowledged, often outcome-determinative choices about how to interpret statutory text”).
• Eskridge et al., supra note 54, at 1640–55, 1678–81, 1687–89; see also Franklin, supra note 54, at 126 (providing partial list of so-called shadow decision points).
• Eskridge et al., supra note 54, at 1623, 1625; see also Tara Leigh Grove, Which Textualism?, 134 Harv. L. Rev. 265, 267, 279 (2020) (observing there are at least two versions of textualism: formalistic textualism, which involves “pars[ing] the statutory language, focusing on semantic context and downplaying policy concerns,” and flexible textualism, which permits consideration of “policy and social context as well as practical consequences”); cf. Franklin, supra note 54, at 129 (asserting textualism “vastly aggrandizes judicial power” to the extent “it enables judges to rely on normative and other forms of extratextual judgment while denying that they are doing so . . . and to decide matters of paramount social importance without providing the people and their elected representatives with a complete account of their reasoning”).
• Scalia & Garner, supra note 13, at xxix.
• Eskridge et al., supra note 54, at 1692.
• Scalia & Garner, supra note 13, at 16–17.
• Frank B. Cross, The Theory and Practice of Statutory Interpretation 169 (2009).
• Neil H. Buchanan & Michael C. Dorf, A Tale of Two Formalisms: How Law and Economics Mirrors Originalism and Textualism, 106 Cornell L. Rev. 591, 634–40 (2021).
• Margaret H. Lemos, The Politics of Statutory Interpretation, 89 Notre Dame L. Rev. 849, 853, 901, 906 (2013) (reviewing Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts (2012)). Professor Lemos attributes the rise of modern textualism to the conservative politics of the 1980s. Id. at891–902. After being adopted by several of President Reagan’s judicial appointees, including Frank Easterbrook and Antonin Scalia, textualism was embraced by conservatives more broadly as a seeming “antidote[] to the ‘judicial activism’ of the Warren and Burger Courts.”Id. at 853, 891–902.
• Id. at 851; cf. Katie Eyer, Textualism and Progressive Social Movements, U. Chi. L. Rev. Online *18 (Mar. 12, 2024), https://perma.cc/WDR2-RJMX (“[T]extualism remains a methodology that is widely embraced by conservative judges and primarily perceived as aligned with conservative causes.”).
• Franklin, supra note 54, at 122; see also Buchanan & Dorf, supra note 61, at 640 (characterizing the originalist and textualist methods of interpretation as “a rhetorical smokescreen for extremely conservative results”); William N. Eskridge, Jr. & Philip P. Frickey, Foreword: Law as Equilibrium, 108 Harv. L. Rev. 26, 77 (1994) (asserting that modern textualism “serves as a cover for the injection of conservative values into statutes”); Joseph Kimble, What the Michigan Supreme Court Wroughtin the Name of Textualism and Plain Meaning: A Study of Cases Overruled, 2000–2015, 62 Wayne L. Rev. 347, 376 (2017) (“In practice, textualism has devolved into a vehicle for ideological judging—disguised as deference to the legislature.”).
• Cf. Katie Eyer, The But-For Theory of Anti-Discrimination Law, 107 Va. L. Rev. 1621, 1682–83 (2021).
• Cf. Franklin, supra note 54, at 140 (asserting Bostock’s outcome is attributable to the ongoing legal and social revolution favoring LGBTQ rights); Mitchell N. Berman & Guha Krishnamurthi, Bostock Was Bogus: Textualism, Pluralism, and Title VII, 97 Notre Dame L. Rev. 67, 79–119, 125 (2021) (“[S]omething has gone awry in Bostock, and Justice Gorsuch’s version of textualism, when performed faithfully, doesn’t yield Bostock’s more liberal bottom-line result.”).
• Equal Emp’t Opportunity Comm’n, Selected Supreme Court Decisions 2000 – 2023, https://perma.cc/YEK7-7YB9 (archived on Oct. 21, 2025) (emphasis added); Equal Emp’t Opportunity Comm’n, Selected Supreme Court Decisions 1971 – 1999, https://perma.cc/ZM9P-HPYZ (archived on Oct. 21, 2025).
• 536 U.S. 101, 105 (2002).
• Id. at 109.
• See id. at 109–10. The ordinary-meaning canon provides that “words are to be understood in their ordinary, everyday meanings—unless the context indicates that they bear a technical sense.” Scalia & Garner, supra note 13, at 69. Separately, the mandatory/permissive canon holds that “mandatory words impose a duty; permissive words grant discretion.” Id. at 112.
• See Morgan, 536 U.S. at 110–11 (considering the term “practice”). This is consistent with the whole-text canon, which requires that the text “be construed as a whole.” Scalia & Garner, supra note 13, at 167.
• Morgan, 536 U.S. at 118–19.
• 548 U.S. 53, 67–68 (2006). The Court further specified that materiality was to be assessed using an objective, reasonable person standard. Id. at 68–69.
• See id. at 61–63. The presumption of consistent usagecanon provides that “a word or phrase is presumed to bear the same meaning throughout a text; a material variation in terms suggests a variation in meaning.” Scalia & Garner, supra note 13, at 170.
• White, 548 U.S. at 63–64. In pertinent part, the supremacy-of-text principle holds that “purpose must be derived from the text, not from extrinsic sources such as legislative history or an assumption about the legal drafter’s desires.” Scalia & Garner, supra note 13, at 56.
• 527 U.S. 471, 475 (1999).
• Id. at 482.
• Id.
• Id. at 484–87. The prefatory-materials canon provides that “a preamble, purpose clause, or recital is a permissible indicator of meaning.” Scalia & Garner, supra note 13, at 217; see id. at 34–35 (describing prefatory material as providing “powerful” evidence of statutory purpose).
• Sutton, 527 U.S. at 491.
• 534 U.S. 184, 198 (2002).
• Id.
• See id. at 196–97.
• Id. at 193–94. The related-statutes canon provides that “statutes in pari materia areto be interpreted together, as though they were one law.” Scalia & Garner, supra note 13, at 252. Separately, the prior-construction canon holds that “if a statute uses words or phrases that have already received authoritative construction by the jurisdiction’s court of last resort . . . or a responsible administrative agency, they are to be understood according to that construction.” Id. at 322.
• See Williams, 534 U.S. at 194 (noting Congress included a specific statutory provision directing that the ADA be construed to grant at least as much protection as provided by the regulations implementingthe Rehabilitation Act of1973, from which the ADA’s definition of disability was taken “almost verbatim”).
• Id. at 197.
• 557 U.S. 167, 176 (2009).
• Id. at 173–75.
• See id. (observing Congress did not amend the ADEA to permit mixed-motives claims when it amended Title VII to permit such claims, “even though [Congress] contemporaneously amended the ADEA in several ways”). The Court recognized that “when Congress amends one statutory provision but not another, it is presumed to have acted intentionally,” particularly “when the provisions were considered simultaneously.” Id. at 174–75. The omitted-case canon holds that “nothing is to be added to what the text statesor reasonably implies . . . . That is, a matter not covered is to be treated as not covered.” Scalia & Garner, supra note 13, at 93.
• See Gross, 557 U.S. at 175–78.
• As the Court subsequently clarified, however, but-for causation is not synonymous with sole causation or even primary causation. Bostock v. Clayton Cty., 590 U.S. 644, 656– 57 (2020) (observing but-for causation “can be a sweeping standard” as events often “have multiple but-for causes”).
• 570 U.S. 338, 352 (2013).
• Id. at 352–60.
• Id. at 353. The other two prohibited actions are types of retaliation, commonly referred to as opposition and participation. See 42 U.S.C. § 2000e-3(a).
• Nassar, 570 U.S. at 353. The general/specific canon holds that “if there is a conflict between a general provision and a specificprovision, the specificprovision prevails.” Scalia & Garner, supra note 13, at 183.
• Nassar, 570 U.S. at 353. The scope-of-subparts canon provides that “material within an indented subpart relates only to that subpart . . . .” Scalia & Garner, supra note 13, at 156.
• Nassar, 570 U.S. at 353. The title-and-headings canon recognizes that “the title and headings are permissible indicators of meaning.” Scalia & Garner, supra note 13, at 221. In Nassar, the section containing the motivating-factor standard was titled “clarifying prohibition against impermissible consideration of race, color, religion, sex, or national origin in employment practices.” 570 U.S. at 353.
• See Nassar, 570 U.S. at 353–57. The general-terms canon holds that “general terms are to be given their general meaning.” Scalia & Garner, supra note 13, at 101. In Nassar, the Court contrasted general antidiscrimination laws, which are understood to ban retaliation by implication on accountof their sheer breadth, with the “precise, complex, and exhaustive” statutory scheme of Title VII. 570 U.S. at 355–56.
• 145 S. Ct. 2058, 2071 (2025).
• Id.
• See id. at 2063–64.The grammar canon states that “words are to be given the meaning that proper grammar and usage would assign them.” Scalia & Garner, supra note 13, at 140.
• Stanley, 145 S. Ct. at 2064.
• Id. This accords with the presumption of consistent usage. The related-statutes canon and supremacy-of-text principle likewise supported the Court’s holding. See id. at 2064–65.
• 519 U.S. 202, 204–11 (1997).
• Id. at 207 (quoting Pioneer Inv. Servs. Co. v. Brunswick Assocs.Ltd. P’ship, 507 U.S. 380, 388 (1993)). This phrasing combines the ordinary-meaning and fixed-meaning canons. See Scalia & Garner, supra note 13, at 69, 78.
• Walters, 519 U.S. at 207.
• See id. at 208 (observing the employer’s proposed test “simply cannot be derived from any possible reading of the text”).
• Id. at 210.
• 519 U.S. 337, 346 (1997).
• Id. at 340.
• Id. at 341. This statement seemingly combines the supremacy-of-text principle with the whole-text canon. See Scalia & Garner, supra note 13, at 56, 167.
• Robinson, 519 U.S. at 341.
• Id. at 345–46. After acknowledging there are sections of Title VII in which the term “employee” refersonly to a current employee, Justice Thomas averred that “those examples at most demonstrate that the term ‘employees’ may have a plain meaning in the context of a particular section—not that the term has the same meaning in all other sections and in all other contexts.” Id. at 343. Although this may appear to contradict the presumption of consistent usage canon, the seminal treatise on textualism observes that “th[e] canon is particularly defeasible by context.” Scalia & Garner, supra note 13, at 170–71. Thus, the Court’s conclusion that the same term has different meanings in different contexts is entirely concordant with the presumption of consistent usage canon.
• 523 U.S. 75 (1998).
• Id. at 79.
• Id.
• See id. at 79–80 (“We see no justification in the statutory language or our precedents for a categorical rule excluding same-sex harassment claims from the coverage of Title VII.”).
• 539 U.S. 90, 101–02 (2003).
• Id. at 98–99.
• See id. at 98–101. The interpretive-direction canon holds that “definition sectionsand interpretation clauses are to be carefully followed.” Scalia & Garner, supra note 13, at 225.
• 560 U.S. 205 (2010).
• Id. at 208.
• Id. at 214–15.
• Id. at 215. The surplusage canon provides that “if possible, every word and every provision is to be giveneffect . . . . None should be ignored. None should needlessly be given an interpretation that causes it to duplicate another provision or to have no consequence.” Scalia & Garner, supra note 13, at 174.
• Lewis, 560 U.S. at 215.
• Writings by Justice Scalia, Legal Info. Inst., https://www.law.cornell.edu/supct/justices/scalia.dec.html (last visited June 2, 2025).
• 575 U.S. 768, 768 (2015).
• Id. at 774.
• See id. at 773–75.
• 590 U.S. 644, 683 (2020). Although the three dissenting Justices in Bostock—Alito, Thomas, and Kavanaugh—contend the majority did not faithfully apply textualist principles, see id. at 683–805, their claim to be the true standard-bearers of textualism is debatable. See Grove, supra note 56, at 282–86 (contrasting the majority’s “formalistic textualism” with the dissents’ “flexible textualism,” the latter of which “seemed to emphasize not the statutory language, but rather how the public would have expected Title VII to apply”).
• Bostock, 590 U.S. at 653–55.
• See id. at 662 (“At bottom, these cases involve no more than the straightforward application of legal terms with plain and settled meanings.”).
• Id. at 655–58.
• Id. at 656.
• Id. at 660–61, 683.
• Id. at 670 (quoting Pension Benefit Guaranty Corp. v. LTV Corp.,496 U.S. 633, 650 (1990)); see also Sullivan v. Finkelstein, 496 U.S. 617, 632 (1990) (Scalia, J., concurring) (“Arguments based on subsequent legislative history . . . should not be taken seriously, not even in a footnote.”).

  For a brief history of proposals to expand federal civil rights statutes to protect LGBTQ persons, see Alex Reed, The Title VII Amendments Act: A Proposal, 59 Am.Bus. L.J. 339, 343–51 (2022).

• Bostock, 590 U.S. at 676.
• Id. at 680. The Court also rejected what it dubbed the “canon of donut holes,” the employers’ argument that “Congress’s failure to speak directly to a specific case that falls within a more general statutory rule creates a tacit exception.” Id. at 669. For the purpose of that “canon,” the general statutory rule was Title VII’s ban on sex discrimination and the specific cases falling within it were sexual orientation and gender identity discrimination. See id.
• Id. at 680.
• 600 U.S. 447, 470 (2023). According to Justice Alito, the “more than a de minimis cost” standard stemmed from lower courts’ reliance on a single sentence in an earlier Supreme Court decision that, “if taken literally, suggested that even a pittance might be too much for an employer to be forced to endure.” Id. at 464 (referencing Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84 (1977)).
• See id. at 468.
• Id. at 468–69.
• See id. at 472. The harmonious-reading canon states that “the provisions of a text should be interpreted in a way that renders them compatible, not contradictory,” whereas the presumption against ineffectiveness holds that “a textually permissible interpretation that furthers rather than obstructs the document’s purpose should be favored.” Scalia & Garner, supra note 13, at 180, 63.
• Muldrow v. City of St. Louis, 601 U.S. 346, 353, 355 (2024).
• Id. at 355.
• Id. at 358. The Court was equally unpersuaded by the employer’s arguments predicated on the ejusdem generis and prior-construction canons. See id. at 356–58. The ejusdem generis canon holds that “where general words follow an enumeration of two or more things, they apply only to persons or things of the same general kind or class specifically mentioned.” Scalia & Garner, supra note 13, at 199.
• 411 U.S. 792 (1973).
• Ames v. Ohio Dep’t of Youth Servs., 605 U.S. 303, 313 (2025).
• Id. at 309.
• Id. at 310.
• Id. at 309.
• Eyer, supra note 12, at 967.
• 411 U.S. 792 (1973).
• Sperino, supra note 10. Professor Sperino is arguably the leading authority on employment law proof structures generally and the McDonnell Douglas paradigm specifically. See, e.g., Sandra F. Sperino, Rethinking Discrimination Law, 110 Mich. L. Rev. 69 (2011) (criticizing employment discrimination law’s existing frameworks); Sandra F. Sperino, Beyond McDonnell Douglas, 34 Berkeley J. Emp. & Lab. L. 257 (2013) (analyzing courts’ application of McDonnell Douglas over time).
• Eyer, supra note 12, at 968, 975.
• Sandra F. Sperino, Irreconcilable: McDonnell Douglas and Summary Judgment, 102 N.C. L. Rev.459, 467 (2024).
• Id.
• See Eyer, supra note 12, at 968 (“Areas such as housing discrimination, public accommodations discrimination, discrimination in government programs, and even Equal Protection claims are also often evaluated by the lower courts via the McDonnell Douglas paradigm.”). But see Deborah A. Widiss, Proving Discrimination by the Text,106 Minn. L. Rev. 353, 379 (2021) (observing “the Supreme Court has repeatedly refused to formally confirm that [the McDonnell Douglas paradigm] governs other statutes”).
• 411U.S. 792, 802–05(1973).
• Id. at 802.
• Widiss, supra note 158, at 379–80 (setting forth the elements of a prima facie case as subsequently developed by lower courts across a variety of claims and contexts). By comparison, the prima facie case in McDonnell Douglas is phrased in terms of the case’s unique facts: failure to hire a racial minority. SeeMcDonnell Douglas, 411 U.S. at 802 (To establish a prima facie case of racial discrimination, the plaintiff must show “(i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications.”).
• McDonnell Douglas, 411 U.S. at 802.
• Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); see also McDonnell Douglas, 411 U.S. at 804 (holding that the plaintiff must be given an opportunity to show that the employer’s proffered rationale is “in fact pretext”).
• Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978).
• Loeb v. Textron, Inc., 600 F.2d 1003, 1016 (1st Cir. 1979).
• Tynes v. Fla. Dep’t of Juvenile Justice, 88 F.4th 939, 946 (11th Cir. 2023).
• Lapsley v. Columbia Univ.-Coll. of Physicians & Surgeons, 999 F. Supp.506, 513–15 (S.D.N.Y. 1998).
• Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008) (majority opinion of Kavanaugh, J.); Walton v. Powell, 821 F.3d 1204, 1210 (10th Cir. 2016) (majority opinion of Gorsuch, J.).
• See Sperino, supra note 156, at 495 n.188 (collecting sources).
• Ann C. McGinley, Credulous Courts and the Tortured Trilogy: The Improper Use of Summary Judgment in Title VII and ADEA Cases, 34 B.C. L. Rev. 203, 229 (1993).
• Widiss, supra note 158, at 355, 357.
• Eyer, supra note 12, at 967.
• Id. at 969. The author provides a representative list of the technical doctrines engrafted onto McDonnell Douglas by lower courts. See id. at 978–80.
• Id. at 969.
• See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 521 (1993) (“McDonnell Douglas . . . is a procedural device, designed only to establish an order of proof and production.”).
• Eyer, supra note 12, at 969.
• Id. at 969–70. Professor Eyer argues that repudiation of the technical McDonnell Douglas paradigm would lead to greater transparency in judicial decision-making and prompt much needed policy discussions regarding the adequacy of anti-discrimination enforcement. Id. at 973. She notes that “[c]urrently, the technical McDonnell Douglas paradigm serves to obscure the courts’ pervasive defendant-favorable normative judgments by hiding what is a fundamentally value-laden judgment—that no reasonable jury could conclude that discrimination took place—behind a series of technical moves.”Id. According to Professor Eyer, “[t]his technical facade makes it enormously challenging to mobilize the moral concern necessary to shift public and judicial perceptions about (non-)existence of discrimination and the inadequacy of legal remedies to address it.” Id. Eliminating McDonnell Douglas, or at least its hyper-technical applications, “would make plain the normative choices that courts are making and thus aid in the broader (and fundamentally more important) project of shifting public and judicial views” in favor of more robust anti- discrimination enforcement. Id.
• Sandra F. Sperino, Flying Withouta Statutory Basis: Why McDonnell Douglas Is Not Justified by Any Statutory Construction Methodology, 43 Hous. L. Rev. 743, 774 (2006); see also Mark A. Schuman, The Politics of Presumption: St.Mary’s Honor Centerv. Hicks and the Burdens of Proof in Employment Discrimination Cases, 9 St. John’s J. Legal Comment. 67, 70 (1993) (asserting “[t]he Court did not cite or discussany passage from Title VII or any other part of the Civil Rights Act of 1964” to justify the framework, so that “[t]he rules laid down in McDonnell Douglas are an audacious and arbitrary exercise of power”).
• Cf. Sperino, supra note 178, at 767 (“Title VII imposes no requirement that only qualified individuals can be discriminated against.”).
• See id.
• See id. at 769.
• Id.
• See id. at 769–70.
• Id. at 771–72.
• Id. at 772.
• Id.
• Id. Professor Sperino notes that “the McDonnell Douglas test also created a false dichotomy between circumstantial evidence and direct evidence that is not supported by the statute’s language.” Id. at 773. Only claims relying on the former are subject to the strictures of McDonnell Douglas. E.g., Ames v. Ohio Dep’t of Youth Servs., 605 U.S. 303, 306 (2025).
• Sperino, supra note 178, at 805–06.
• Ames, 605 U.S. at 313.
• See id. at 308 n.1 (noting that in addition to the Sixth Circuit, the Seventh, Eighth, Tenth, and D.C. Circuits had expressly or impliedly adopted the background circumstances rule).
• Id. at 307. “[T]he rule effectively requires majority-group plaintiffs (and only majority-group plaintiffs) to produce certain types of evidence—such as statistical proof or information about the relevant decisionmaker’s protected traits—that would not otherwise be required to make out a prima facie case.” Id. at 311.
• Id. at 309.
• Id. at 310.
• See infra text accompanying notes 195–203. Separately, Justice Kavanaugh has derided the prima facie case as “spawning enormous confusion and wasting litigantand judicial resources.” Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008) (majority opinion of Kavanaugh, J.).
• See Ames, 605 U.S. at 314 (Thomas, J., concurring).
• Id. at 313–14.
• 145 S. Ct. 759 (2025) (Thomas, J., dissenting).
• Id. at 761–62.
• Id. at 762; see also Ames, 605 U.S. at 323–24 (observing that “[a] plaintiffwho cannot establish a prima facie case at the first step or pretext at the third step can still prevailunder Title VII so long as his evidenceraises a reasonable inference of unlawfuldiscrimination”).
• Ames, 605 U.S. at 322; see also Hittle, 145 S. Ct. at 761–62 (recognizing the framework was initially developed for use in bench trials to “resolv[e] the ultimate question . . . [of] whether the defendant intentionally discriminated against the plaintiff”).
• Ames, 605 U.S. at 322–23; see also Hittle, 145 S. Ct. at 761 (“[A] plaintiff need not establish or prove any elements—by a preponderance or otherwise—to survive summary judgment.”).
• Hittle, 145 S. Ct. at 762–63; see also Ames, 605 U.S. at 326 (“That those who have carefully grappled with the frameworkfor decades cannot make sense of it suggests that the framework is unworkable.”).
• Ames, 605 U.S. at 320; see also Hittle, 145 S. Ct. at 760 (same). Justices Thomas and Gorsuch note that the Supreme Court has never offered a textualist justification for the framework. Ames, 605 U.S. at 320.
• See infra note 207.
• See supra notes 198–203 and accompanying text.
• E.g., Ames, 605 U.S. at 309–10 (Justice Jackson); Muldrow v. City of St. Louis, 601

  U.S. 346, 354–55,358 (2024) (Justice Kagan).

• Excluding Justice Kagan, these Justices are widely regarded as textualists. See Krishnakumar, supra note 13, at 575 n.1 (classifying Justices Barrett, Gorsuch, Kavanaugh, and Thomas as textualists and Justices Alito and Roberts as “textualist-leaning”). Perhaps owing to her status as one of the Court’s “liberals,” Justice Kagan is seldom categorized as a textualist even though she routinely advances textualist arguments. See, e.g., West Virginia v. EPA, 597 U.S. 697, 779 (2022) (Kagan, J., dissenting) (consulting contemporaneous dictionaries to define ambiguous terms and implicitly invoking the supremacy-of-text principle and whole-text canon).
• See Walton v. Powell, 821 F.3d 1204, 1210 (10th Cir. 2016) (noting McDonnell Douglas “has proven of limited value” and is plagued by “confusion and complexities”).
• See Krishnakumar, supra note 13, at 603 n.111 (finding Justice Kagan referenced “practical consequences” in 35.4 percent of the opinions she authored).
• See Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008) (observing McDonnell Douglas has “spawn[ed] enormous confusion and wast[ed] litigant and judicial resources”).
• See Krishnakumar, supra note 13, at 603 n.111 (findingJustice Sotomayor referenced “practical consequences” in 46.8 percent of the opinions she authored).
• See Ames v. Ohio Dep’t of Youth Servs., 605 U.S. 303, 319 (2025) (Thomas, J., concurring) (recognizing McDonnell Douglas “has caused significant confusion and troubling outcomes on the ground”).
• See Adam Feldman, The Real A.C.B., Empirical Scotus (Apr. 1, 2025), https://empiricalscotus.com/2025/04/01/the-real-a-c-b/ (“Justice Barrett’s approach to statutory interpretation consistently reflects her textualist philosophy and judicial restraint, with a focus on the plain text of statutesand a reluctance to expandtheir scope beyond what is clearly written.”); see also Valerie C. Brannon et al., Cong. Res. Serv., Judge Amy Coney Barrett: Her Jurisprudence and Potential Impact on the Supreme Court 22–28 (2020) (examining then-Judge Barrett’s scholarship and the opinions she authored, joined in, or dissented from during her time on the Seventh Circuit).
• See, e.g., Utahv. Strieff, 579 U.S. 232, 243–44, 254 (2016) (Sotomayor, J., dissenting).
• Jeffrey Rosen, John Roberts is Just Who the SupremeCourt Needed, Atlantic (July 13, 2020), https://www.theatlantic.com/ideas/archive/2020/07/john-roberts-just-who-supreme-court-needed/614053/.
• See supra Part III.C (observing that seven of the ten pro-employee decisions were decided unanimously).
• Widiss, supra note 158, at 414; see also Timothy M. Tymkovich, The Problem with Pretext, 85 Denv. U. L. Rev. 503, 528–29 (2008)(proposing a text-based sufficiency of the evidence approach whereby the plaintiff “maintain[s] the burden of proof to convince the judge or jury that the adverse employment decision . . . resulted from a discriminatory motive”); cf. Deborah C. Malamud, The Last Minuet: Disparate Treatment After Hicks, 93 Mich. L. Rev. 2229,2317–18 (1995) (contending the McDonnell Douglas framework should be abandoned at all stages of litigation, meaning “the only relevant question at trial would be whether the plaintiff has proven intentional discrimination by a preponderance of the evidence”).
• Sperino, Rethinking Discrimination Law, supra note 154, at 115.
• There are several contexts in which employment discrimination law already utilizes the sort of direct, factually focused inquiry envisioned herein for claims currently governed by McDonnell Douglas. Examples include harassment and stereotyping cases as well as the “motivating factor” and “direct evidence” approaches. Eyer, supra note 12, at 1011–12.
• Loeb v. Textron, Inc.,600 F.2d 1003, 1016 (1st Cir. 1979).
• Kevin M. Clermont & Stewart J. Schwab, Employment Discrimination Plaintiffs in Federal Court: From Bad to Worse?, 3 Harv. L. & Pol’y Rev. 103, 103–04 (2009). This study relied on data compiled by the Administrative Office of the U.S. Courts, assembled by the Federal Judicial Center, and disseminated by the Inter-university Consortium for Political and Social Research. Id. at 103 n.2. Although the dataset includes information on all cases terminated in the federal courts since fiscal year 1970, the authors cite courts’ coding delays and the Administrative Office’s subsequent coding updates as the reason their analysis does not begin until fiscal year 1979. Id. at 104 n.4. Separately, at the time of publication, fiscal year 2006 was the most recent year for which data was available. Id.
• See id. at 121 (“[I]f litigating becomes more apparently a fruitless endeavor, one would expect to see a decline in employment discrimination cases.”).
• Id. at 127.
• Eyer, supra note 12, at 977 n.55. Sixty of the sixty-three cases were decided on summary judgment. Id.
• Id. (providing examples). McDonnell Douglas’s repudiation would not guarantee plaintiffs’ success, however. See Eyer, supra note 12, at 1013–14 (identifying four plaintiff-adverse factors independent of McDonnell Douglas: judges’ aversion to employment discrimination claims generally; defendants’ aggressive utilization of summary judgment; plaintiffs’ difficulty securing legal representation; and jurors’ hesitance “to interpret even compelling facts as discrimination”).
• McGinley, supra note 170, at 229.
• Ames v. Ohio Dep’t of Youth Servs., 605 U.S. 303, 322–23 (2025) (Thomas, J., concurring).
• Scalia & Garner, supra note 13, at 16.
• Id.
• See id. at xxiv (foreword by Judge Frank H. Easterbrook).
• Id. at 16.