William R. Corbett
94 Geo. Wash. L. Rev. Arguendo 35
The Supreme Court’s escalating textualist purge of the judicial gloss on Title VII, displayed in Ames v. Ohio Department of Youth Services and Muldrow v. City of St. Louis, is fashioning a body of law that differs significantly from the one that has developed over six decades. This Essay considers how the Court’s textualist approach has reshaped employment discrimination law in recent decisions and how it may continue to do so.
This Essay argues that the Court’s textualist approach may soon expand to McDonnell Douglas Corp. v. Green, based on enduring critiques by Justice Thomas and Justice Gorsuch. This Essay links Justice Thomas’s two criticisms of McDonnell Douglas—inconsistency with the summary judgment standard, and failing to account for the many ways plaintiffs may prove discrimination—and concludes that the result of the textualist scrubbing of judicial gloss seems likely to be more favorable for employee-plaintiffs and far less favorable for employer-defendants than previously, with far fewer cases resolved on defendants’ motions for summary judgment.
