# McDonnell Douglas framework: HR's risk | HRmatics | HRmatics

https://www.hrmatics.net/article/mcdonnell-douglas-framework-employers-termination-files

> News/analysis from HRmatics offering legal reporting and practical HR guidance; useful for informing HR practice but not a legal opinion. Attribute claims about case developments to the cited courts and reporters when summarising; treat operational recommendations as the author's practical advice rather than legal conclusions.

## Summary

The article explains that two Fifth Circuit judges signaled willingness to revisit the 50-year-old McDonnell Douglas burden‑shifting test after a panel affirmed summary judgment for Procter & Gamble, and advises HR teams to strengthen contemporaneous, consistent termination documentation because changes to the pretext step would increase litigation risk.

## Audience

people leaders / HR professionals

## Prompts this page answers

- What should HR audit in termination files if courts may revisit the McDonnell Douglas framework?
- How did the Fifth Circuit's recent P&G decision affect the McDonnell Douglas burden-shifting test?
- What practical recordkeeping changes should people operations make after Ames?
- Which circuits are moving away from rigid McDonnell Douglas steps toward a 'convincing mosaic' approach?

## Purpose

Inform and advise HR leaders about potential doctrinal changes to workplace-discrimination law and recommend operational steps to reduce legal risk through better termination documentation.

## Highlights

- A Fifth Circuit panel affirmed summary judgment for Procter & Gamble in August 2026 while two of three judges wrote separately indicating they might revisit the McDonnell Douglas framework.
- If the pretext step is weakened or removed, more discrimination claims will survive summary judgment, increasing discovery, legal spend, and settlement risk.
- The Eleventh Circuit favors a 'convincing mosaic' approach, so standards already vary by circuit.
- HR should audit termination files for contemporaneous, written reasons created before separation and ensure consistent treatment of similarly situated employees.
- DEI-related decisions must be documented with the same rigor as other terminations post-Ames.

## How to cite

HRmatics — 'McDonnell Douglas framework wobbles: HR's paperwork is the backstop' (https://www.hrmatics.net/article/mcdonnell-douglas-framework-employers-termination-files)

## Publisher

**HRmatics** — Independent publication for HR leaders; a Demandmatics media property.

## Topics

- McDonnell Douglas framework
- pretext
- Fifth Circuit
- termination documentation
- employment discrimination
- Ames v. Ohio
- convincing mosaic
- HR risk

## Key entities

- **Procter & Gamble** (organization): Employer involved in the Fifth Circuit case discussed.
- **Fifth Circuit** (organization): Federal appellate court whose panel decision and concurrences are central to the article.
- **McDonnell Douglas framework** (other): 50-year-old burden-shifting test for discrimination claims discussed throughout the article.
- **Justice Clarence Thomas** (person): Mentioned for a concurrence (Ames) questioning the statutory grounding of burden-shifting.
- **Ames v. Ohio Department of Youth Services** (other): Supreme Court concurrence cited as a trigger for reexamining burden-shifting.
- **Bassett v. Gray Media Group** (other): Named as a live Fifth Circuit case that could revisit McDonnell Douglas.
- **Eleventh Circuit** (organization): Circuit described as moving toward a 'convincing mosaic' approach.
- **HRmatics** (organization): Publisher and source of the article. — https://www.hrmatics.net

## Metadata

- Type: article
- Published: 2026-09-02