When Congress passed Title VII of the Civil Rights Act of 1964, it failed to address how a plaintiff is required to prove employment discrimination in the absence of direct evidence. Since then, a series of tests have evolved articulating how a plaintiff can defeat a defendant-employer’s motion for summary judgment relying on circumstantial evidence. The most famous of these is the McDonnell Douglas framework, referring to the burden-shifting test articulated by the Supreme Court in McDonnell Douglas v. Green, 411 U.S. 92 (1973). In that case, the Supreme Court held that, in a private, non-class action alleging discrimination under Title VII, the complainant has the burden of establishing a prima facie case, i.e., that (i) they belong to a protected class; (ii) they were qualified for the position they held or sought; (iii) though qualified, they were rejected or suffered another adverse employment action; and (iv) the employer sought candidates with complainant’s qualifications or replaced them with a person outside their protected class. Once the complainant has satisfied their prima facie burden, the burden of production shifts to the employer to advance a legitimate, non-discriminatory explanation for the challenged employment action. If it does so, the burden returns to the complainant to establish that the employer’s explanation is pretextual, meaning that it is false and that discrimination was the real reason for the adverse action.
For more than fifty years, the McDonnell Douglas framework has been the gold standard for defeating summary judgment in employment discrimination litigation, but, despite its ubiquity, it is not the only test that courts have sanctioned to establish disparate treatment. For instance, in 2011, the Eleventh Circuit held in Smith v. Lockheed-Martin Corp., 644 F.3d 1321 (11th Cir. 2011), that an employee can defeat a motion for summary judgment by presenting a “convincing mosaic” of circumstantial evidence from which a reasonable jury could infer unlawful intent on the employer’s part. This “mosaic” can include ambiguous statements or preferential treatment of other similarly situated employees, as well as pretextual justifications for its decision-making. Since then, federal courts have grappled with whether to apply the mechanical McDonnell Douglas test or the more relaxed “convincing mosaic” approach at the summary judgment stage.
That tension was seen most recently in Ismael v. Roundtree, et al., No. 25-10604 (11th Cir. Dec. 5, 2025), a case in which the Eleventh Circuit was asked to articulate the proper standard for reviewing summary judgment in disparate treatment litigation. Mr. Ismael, a deputy sheriff, alleged that a supervising lieutenant subjected him to persistent racial harassment, after which he was retaliatorily discharged for allegedly misusing a patrol car to seek employment at another police department. Mr. Ismael alleged that the Department’s justification for his termination was manufactured out of whole cloth to cover up its retaliation for his complaints of racial harassment. The Department and individual defendants filed a motion for summary judgment and the trial court held that Mr. Ismael failed to prove that the defendants’ articulated reason for his termination was both false and a cover-up for its real retaliatory motive. The court then declined to consider alternate evidentiary approaches, such as the convincing mosaic test, dismissing the test as duplicative.
The Eleventh Circuit reversed. Although the appellate court recognized the “famous yet ill-understood” McDonnell Douglas holding as a “canonical” evidentiary standard, the court emphasized that the test was never intended to be the sine qua non for surviving summary judgment, citing Smith. Embracing the “convincing mosaic” test, the court confirmed that “a plaintiff may avoid summary judgment by presenting a wide range of circumstantial evidence,” which together form an “entire evidentiary picture” that goes further than pretext. Id., citing Yelling v. St. Vincent’s Health Sys., 82 F.4th 1329, 1242 (11th Cir. 2023). Since the court had declined to consider Mr. Ismael’s evidence in this broader context, the Eleventh Circuit remanded so that the district court could apply the correct – and substantially more relaxed – summary judgment standard.
Not all courts have joined the Eleventh Circuit in embracing such a broad approach to considering circumstantial evidence at the summary judgment stage. Although decisions from the Fourth, Seventh, and Ninth Circuits have toyed with the notion of reviewing an “entire mosaic” of evidence, the Seventh Circuit expressly rejected the test in Ortiz v. Werner Enters., Inc. in 2016. This Circuit split leaves the issue ripe for Supreme Court review to determine whether the McDonnell Green test is the only test or one of many fair approaches to the question. Nonetheless, the Supreme Court has twice declined to take up the issue, first in March 10, 2025 when it denied certioriari in Hittle v. City of Stockton notwithstanding the petitioner’s argument that the three-step McDonnell Douglas framework is not compelled by Title VII or Federal Rule of Civil Procedure 56. Although the majority did not explain why they declined review, the decision elicited a stinging rebuke from Justices Thomas and Gorsuch. Justice Thomas—formerly Chair of the Equal Employment Opportunity Commission (EEOC) from 1982-1990—authored the dissent, arguing that the Supreme Court “made [the McDonnell Douglas test] out of whole cloth,” and submitting that the test “caused significant confusion,” “produc[es] troubling outcomes on the ground,” “is necessarily underinclusive,” sows “chaos,” and may no longer be “a workable and useful evidentiary tool.”
Despite Justices Thomas’s and Gorsuch’s invitation to the Court to seize a future opportunity to revisit McDonnell Douglas, the Supreme Court again this month declined to hear a similar challenge in Licinio v. New York (U.S. Jan. 12, 2026). The petitioner in the case objected to the Second Circuit’s affirmation of summary judgment in favor of his employer, a decision the appellate court reached after applying the McDonnell Douglas test. He argued that the test is not rooted in Title VII or the rules of civil procedure but is instead an ineffective judicial invention that denies employees their day in court. This time, the Supreme Court denied certiorari without comment or dissent.
Thus, for now, federal courts continue to disagree about whether the McDonnell Douglas burden-shifting analysis is a necessary and sufficient, or suboptimal, approach to summary judgment in disparate treatment litigation. The practical takeaway for employers is that, in jurisdictions already expressly adopting a “convincing mosaic” standard or if the Supreme Court rejects or modifies its five-decade-old precedent in McDonnell Douglas, courts may not require plaintiffs to prove that the employer’s explanation for an adverse action is false or untruthful. If that is the case, a much wider variety of circumstantial evidence pertaining to the employer’s treatment of employees in the same protected class or of similar prior alleged incidents may be considered at the summary judgment stage, making dismissal of a lawsuit prior to trial significantly more challenging and raising the stakes for settlement. We will continue to monitor developments in this area.
