100 days as we look at the start of presidential terms, this week we focus on the early months of president lyndon johnson's term in 1963 following assassination of president john f. kennedy. johnson addressed congress shortly after kennedy's death and called on members to pass civil rights legislation. at 8:00 p.m. eastern on lectures in history, university of southern california sociology professor britney friedman on evolution of prison gangs in the 20th and 21st century. watch american history t saturdays on c-span2. find full scheduling on program guide. u.s. supreme court heard a case involving an ohio woman who alleges her employer discriminated her on the basis of sexual orientation.

the plaintiff in the cas alleges that the department of youth services denied her promotion in favor of a gay person in violation of civil rights act of 1964. the oral argument is nearly an hour. >> we will hear argument of case number 231039 james versus ohio department of youth services. >> mr. chief justice and it may please the court. in 2011 her yearnd performance review described her to be competent in her role and pleasure to have on her team. t she saw arotion to bureau chief for which she was qualified and interviewed. r she or t other ho

se employees. based on theseacts the sixth circuiteld ms. aim h satisfied usual requirements for stating cf discrimination under title 7 but could not proceed because of rule which the sixth circuit describes tional showing you peek t majority group plaintiffs. the question before the court today is whether this judge may consistent with title 7 and we see that it is not. it's not because this court has said that title 7 aimso eradicate all disimation in the workplace eradicate instrument -- discrimination and structs courts to practice it by sorting them into majority

and minority groups based on race, sex protected characteristic anding an assumpti against a party based soly on their being in a majority group, however you define it. that is not consistent wi statute that tells us that we are supposed to protect all individuals from individual discrimination based on the inal case and is not consisith mcdonald versus santa fe trail where this court sa that individuals are prected by title vii under the standards. and the same for these reasons we urge the court to reverse the dgment of the sixth circuit. i welcome ons. >> what do you do with respondents argument that this is an application of the president? >> i do not think it iof the application of the precedents. d it is because the precedent lays out the framework and then mcdonald versus santa fe trail

says they applied to the same terms and standards, at background circumstances rule is not the term or standard but the sixth circuit says it is anional burden and in prior cas iis a difficult and more demanding burden on the majority group. i do not think it is consistent with the precedents. >> what if you have a situation where say 60 employees in the company, and say half a dozen african-ans and an african-american app for a job and there is anng and he does not get it and it remains open for you know a le of months? does that satisfy the prima facie case? because it was because of discrimination? >> assuming that ty are qualified? >> yes. i'm sorry is that a yes? t is true. >> now let us say it is the same thing but the applicant is white

. exactly the same facts and she said i lost the job because of discrimination on the basis of race, does that state a prima facie case? >> i think it does. but it goes perhaps to the idea that getting employers to come forward with anxplanation and providing legitimate nondiscriminatory reason. i do not think it is a high board d all as reeves made clea ty have to provide some reason to answer or to reb the case. >> can i just clafy the hypo? in both situations the job stays open for a few months but that it is filled by a person of a different ceis that right? >> i was under the understanding that the hypothetical that it remained open? >> it just remained open. >> that was my understanding. >> sorry. >> i am happy to answer an

alternative. sorry about that. >> no. no. well, what if it was changed according? [laugh >> i my int is that the standard, the test for prima facie case as i understood it is that you have to state rise to a reason to believe that ere is racial discrimination or discriminof some sort. i would think just saying i applied job and it remained open, is that eno you have to say that it was filled by someone of another race, and that is what then gives rives to the information -- rise to the inference of discrimination. >> i think the first is whether is filled by someone of the same group and of a differt race that brings into the issue of whether thea similar comparator which is a common analysis that takeslace in the

lower courts when it comeso stating a prima fascia case. if it is held open, i think it means the case serves as an excellent nation forcing mechanism. is meant to bring the employer to the table. to come forward with some sort of explanation. heaven but -- a heavy burden. naturally,t often just happens anyway, in depositions or other declarations. it is asking the employer to come forwa provide some explanation to continue the process of understanding whether discrimination occurred. >> what i was trying to get at, and i should have beenlearer that this is aion staying open. in one case i suppose, just because of the underlying facts, the assertion that this was discriminatory seems to me is more plausible than the assertion that it was scriminatory if everybody else in the company is white as well. you are saying you cannot take that fact into account?

>> i am not saying you can take that into account. i am saying with regard to the question presented ibemes a categorical assumption and i do not think that is fair. what we said is that these facts -- prima fascia case offascia discrimination and the employer will comerd with a legitimate reason. and when it comes to the ultimate question of discrimination, one looks at all of facts before th the question i think that is presented is whether there is an i do not think that is consistent with either title vii's textor precedent. >> what do you have to say that this will just throw the door wide open to title vii suits because now everybody can say this was discrimination on the basis of race and etc. >> i do not think i is well taken for two reon the fit that this is an

evidentiary question. they have already gone past a discussion with eeoc and plausibility and the motion to dismiss. if it was a fldge issue that would be more on the pleading stanrd the second point is an eml question. as we lay o a ashley judd -- the judge laysutmore that half of the circuits do n circumstances rule.ound we do not see a flood of litigation and there is not a circuits who apply it and those who do not apply. that goes to the narrow question before the court today. >> in circumstances -- in the circuits that do not apply it, i was a little bit unclear about one of the points that you had made to the chief justice. and those that do not apply, you said that the fact of a particular person's race or

whatever it is, gen sexual orientation can come into acco a circumstance. what do you mean? >> if i was unclear, let me try to clear it up a bit. in the circuits that do not apply it, as the third and the 11th, theyakthe mcdonnell douglas standard and say what kind of protected characteristic are you talking about? are you qualified, is it adverse? ended the job remain open or a similar situated comparator. i think the question of context mattering. i think thaofn comes in on steps two and three and when the employer comes forwardft they have settled the most common nondiscriminatory asons. cehe employer comes forward with the explanation and that becomes more case specific and u talk about hiring patterns of the company and the makeup of the company. i think that comes into play in ma othe lower courts. >> i am going to ask you an

unfair question. this case has pro on the assumption that mcdonnell douglas appn the summary judgment stage. an this court has never held that it applies in the summary judgment stage. what should we do or think about that? i am going to try to giveou a fair answer to that question. parties here takehat all of the mcdonald-douglass given. and i think the first response that i would have is because we take it as a given we are trying to fus on rrow question of whether thisddn mcdonald-douglas in the common cases is appropriate. that is the first one. the second is because the parties take it as given, it is not really the best vehicle to really re-examine it. as it is pointed out the another case pending that could

granted that re-examines it. i think maybe as a final point, whether you have mcdonnell douglas or not, there is an underlying question of should you apply some sort categorical evidentiary percent -- presumption against the individual based on being in the ty group. i think the courts say that the >> it wa unfair because nobody as us to do anything about it in the case u appreciate that you are standing at the podium so, what the heck, correct. mcdonald-douglas was devised whenhere were bench trials for e cases. we pass that along time ago. and i thought the standard was statement of fact of -- a discrimination but the mcdonald-douglas framework have three snumber of -- none of whichr in summary judgment.

in the third statas really cauga lot of plaintiffs. having to show that the ant stated reasons for the adverse employme action a pretextual. it be that they are not, but they are still discrimination. uses. normally we think title vii wouldapture any but for cause. just thoughts about >> i do not want tst on the petitioner's on that case at all his manner. my personal sense is that th statute is trying tostand as you saidwhether discrimination happened. i think the tape away from hicks versus sanderson is that if you have a legitimate nondisatory reason, let us not fight over pretext and but get at the root of the issue

, whether discrimination happened. if i could make a tieback, the question is iividual discrimination happened. it is not whether it is some pattern orice of group-based discrimination or specific look at thetatus of the dispare of the decision-maker. it is about individual circumstances in any individ case. >> isn't it about whether the stated reason by the employer was true or if not whether it was becausef ce, sex or what have you? >> i that goes to steps two and three. and i think that whether true or not, i think that this precedent, i think it cts that if it is not true under reeves, it does not necessarily require a finding >> it ot require but it will often leave that way. i thought mcdonald-douglas dropped out once the employer stated a reason. yes. >> that is what the d.c. c

judge said. that is what i thought this court had suggested in cases like -- a variety of cases. >> justice kavanaugh i think that is right. >> the employer usually states the reason an answer. >> let me tackle that in two ways. >> we are pretty far afield f the question presented. >> and i just want to be mindful of that but so provide a full the first point to your question is i tnkhat is a possible take away from aikens and certainly the d.c. circuit judge that i think why i do not necessarily know if that can be resolved in this case, this particular case, our client ms ames lost on step one and ny cliene on step one. sometimes you do not get to step two. this is why there is aircuit split on whether there should be

anional requirement. short opinion that saysally discrimination on the basis of sexual orientation whether it is because you are gay or straight is prohibited and the rules are the same, whichever way that goes? >> that is right. and i think that would be something -- you would also have to say reverse or vacate. i want to look out for my clients a little bit. and certainly as to the reasonintirely agree. i think it is a narrow queio and the question of an added burden. i ink the answer is no, then this goes back to the lower courts to resolve. >> just as a footnote, it is not just whether discrimination was a reason, but was it a motivacorrect? under the stat could be a legitimate reason and as the

justice said, but it still could have been based -- on race or sex or gender identity? >> yes. i think i entirely agree with that. i think the take away from several of tseourt cases like the abercrombie and fitch case said it needed to be the moti factor so i entirely agree. i do not think this case would implicate that line of predents. >> thank you counsel. >> anything further? ng? juste jackson? thank you. >> mr. chief justice and may it

please the court, the court of appeals applied a different and more difficult standard because onsired her a member of the majority but title vii draws no dison between race, religionor procted characteristic. that alone is reason to vacate the decision that the tesd have been wrong if applied evenhandedly. the court required evidence and reason to suspect employer usually discriminates against the group but the statute does not and it re mor evidence to make out a prima faci casethis court held necessary including at risks screening out cases with mer and complicates litigation by focusingn whether to shift a burd production that ohio had already the court should vacate and remand for the cf appeals to apply the proper standards in the first instance including two consider the alternative arguments by summary judgment might still be popular -- it

this might be done in settingd the prima facie case an this might be done by showing that he belongso a racial minority. what work does that do? >> we think that that identifies the protected class to which the plaintiffongsnd focuses the tion on whether the discrimination occurred on the basis of that protectes. that the court of appeals andk the othets w adopted that things it does, namely that it was predicated on the assumpti about the rate at which different groups were discriminated against. grore discriminated against. th court told us it arises because of the different insight about employers that ter ovide reese's, so if this is the rare er who cannot come forwah nondiscriminatoryson r their action, the reason becomes more likely discriminatory. that is annsight that holds

good regardless of the identity thelaintiff. th a plaintiff who makes out a prima facie case is necessarily going to trial. in virtually every case, an employercomeorward with some nondiscriminatory reason for theions, and then the question wcus whether that reason is tual or whether there is otherwise events to indicatehat an employer acted for a discriminatory reason. that itself is a difficult word and forlaintiffs to meet. we rejecthe sixth circuit's test because it is adding an adal a textual burden that risks screening out cases that might otherwise satisfy the statute standard for liability. >> can you givbaground about the eeoc's interpretation of the statute, because it has a different approach, right? >> it has a different approach -- >> i did not mean and you do, i'm at the sixth circuit. >> yes, it has rd the

background circumstaule that applies the same private facia case -- the same prima facie case, and it has bee consistent with that because it understands this court's subsequentionsn mcdonnell and others to reject the idea that mcdonnell douglas turned the race or identity of thntiff. >> and i askede whether this would lead to a floodgate problem, as the department says, pele filing suits.all these eeoc, since 2001, has had this interpretation of the statute. wh has their experience been? >> eeoc has had the it seems to be clear, well it does investigate all charges, parties do not need the eeoc to conclude there is reasonable cause to proceed. eeoc will also i- wi tter.s issue a right to sue

in our expanse as an employer who regularly litigates these case as a defendant, we do not need a higher prima facie case, becaus in every case, the government can provide an nondiscriminatoron for its action. so the case will proceed to step three, whether o that reason is a pretext or whether or not we ultimat differ discriminatory reason. that in itself is a high hurdle, so if a plaintiff can't satisfy that bar, they will not go to tria we share ohio's concern to make sure certain co noreach a trial, but we believe raising the standard would bwron way to address the concern because it would focus part of these on a question that has ofcome ancillarye time a court considers a motion for summar judgment. fendant willften virtually al come offer some reason for their action, either through

deposition, declaration, so other paper evidence. so for the court to focus on her plaintiff has triggered a burden of production that a defendant has already met strikes us as besides the point, and that is what the court said judge said. the d.c. circuit to the extent that there is douglas, it would be helpful for this court to clarify to the sixth circuit that because ohi has already met its burden of and should proceed to thet can ultimate question of whether a factfinder could find ation. -- could find determination. >> i want to pick up on that point, at least in many circuits the step three inquiry pretext has become kind of an absolute condition that has met. you have to show thareason offered by the employer is

tual to get to trial. again, we have never held that, this court has never done it in the context. other rcts may have done it different way and many have dot i described. seems inconsistent, the motivating factor test and with the causation teswh there are two possible causes, one might be discriminatory and another mht be discriminatory. any thoughts on that? >> i am mindful that the court ha put forward a pending position, so i wil not talk about what was specifically incorrect in that case, b what i will say is we understand that any plaintiff that can produce evidence in which a jury can defer discrimination should go to trial. >> ok, thank you. >> can i ask about the government's expernce in terms of court confusion? t your experience that, at least with respect to step one, there has been sort of widespread misunderstanding of

what is supposed to happen? >> i do think there has been concision -- con in the e court could take two stepsnk that would go a lontowas addressing that confusion. weake ear that the first above mcdonnell douglas should notcrn out any case that might ully sisfy the standard, statutory standard for liability. so what the sixth circuit did here, for instance, by asking for a reason to think that an employer usually does, and it's against a group require evidence that a plaintiff would not need to est liality under the statute. because even if aoyer generally treats a group well, if a plaintiff has evidence at an employer discriminated agher, she should be able to proceed. >> i hear you sing the first step is to make sure you make clear that step one is a lobar -- is a low bar, you're not g your case at that point. >> i do believe that is important, a plaintiff is not required a step one to prove discrimination is more likely than not. they need to prov in step one

that the fac left unexplained, would make them a script -- discrimination more tha not. that does significant work, because if an employer cannot come up with a nondiscriminatory reason, any reason, even arbitrary reason for why it took e emoyment action it took, that in itself was highly probative whether or not there was discrimination. and the edges no facts necessary to prove discrimination in that circumstance would be, as this court has said -- >> i apologize for cutting you there were two things the crt could say. >> the second one is clarifying, that if an employer has met its burden of production, whether that employer had the bur the first place, is not something that the court nee answer. instead, the can focus the ultimate question of whether there is discrimination, ing coidering any evidence that suggests the reason that the employer gave was contextual. >> i will be going on to talk about step two that is a low bit

outside of the scope of this se, right? >> we think witsixth circuit, because ohio in the ready held, satisfied thels has burden, it would be appropriate for the court to say that the court of appeals canroceed to step three. >> thank you. >> would be -- the rule that the sixth ciui applied was apparently based on intui about the way in which most employers behave. and maybe it was s at the decided, maybe as some have was argued, it is no longer sound today. suppose we say that that was an error, would it be permissible same notion into subsequentt of a mcdonnell douglas

taking into account whether there is sufficient evidence to get by summary judgment, can a court take into account the of the decision-maker and the race of the plaintiff? >> i think it is important distinguish between two ways the court might takrace into account the first is the way the sixth circuit did, which is tell me your race, i will tell you how much evidence we need to produce or i will apply a different standard. the proceeding.ong at any stage irrelevant in a racehat race is discriminaase sex i irrelevant in a sex discrimination case, but ink that type of evidence comes int practice. in our eerience with these cases, it takes two forms. rst, plaintiff can introduce encehat their employer has a history of discriminating against their particular group, via a discriminatory pattern of

hi or firing or history of derogatory comments directed at a particular group. second, courts can't consider a ntiff's identity to help can consider a plaintiff'ourts identity to help them draw inferences, so comments can take on a different meaning whe an example of what that means, in price waterhous cou had no trouble understanding that when a male supervisor te a fema subordinate that anceof promotion would be better if she wore more makeup,r welry, was less a grace -- less aggressive, and that stereotypes. where as if a female subordinate was told deadlines, it is not sed, but there is evidence that it is, enforcingines for different colleagues. the courts can consider those but the courts cannot do what the six circuit did herch is draw inferences solely from

the identity of the plaintiff and the on c judgment dependent on evince on record about how frequently the group may or may not discriminate -- experienced discrimination. >> thank you, counsel. is a protected characteristic on the part of the decision-maker alone enough to establish a prima facie case? no, we do not think so, justice. that hits at a oddity about the sixth circuit's opinion suggests that evidence that would not be enough to make out a prima facie case generally wo be if you change identity of the decision-maker. t because the prima faciease is hitched to step t, it looks to what would happen if an employer cannot come forward with any explanation, we think that whether or not a sionaker was of a particular identity or not, if cant come up with any nondiscriminatory reason for their actions, that alone is a strong signal of discrinion. >> juscelito? >> i want to follow up on a

point you we awering previously. i think it is an important point, when you say thatomof what this sixth circuit appeared to be concerned about can be considered at a late stag as a mcdonnell douglas process, that does not mn the stereotypes are solely on the decision-makers race and a plaintiff's race. >> that is right, the court evence on record before them. we thin thcourt is conflicted with the particular facts about acula employer, of course it is appropriate consider, and the facthat plaintiff was a member of a group thathis employer has historically discriminated against, of course can be relevant, and we would not want the court to suggest otherwise on opinion. likewise, as we said note one of our brief, this case does not have to do with the prima facie case and a pattern or practice it is exactly the p but the court should not, based

on its own independent sense of which groups experiences more discrimination or not draw its own conclusions absent. >> ok, so this is not a pattern practice case. and you say that it would be permissible for a courtt a later stage of thecdnell douglas process to tao account the employer's hiring patterns. so whatould that mean here? suppose that the plaintiff said, look, they discrimingainst me because i am heterosexual and here are five other instances where they did te thing is that going to come in? will the cou have many trials proceedings on all of these other alleged instances? >> i think there are two types

of historical evidence abou employer's hiring or firing patterns that commonly th first is statistical evidence that the cn mcdonnell douglas said may be relevant in step three of litigation. cond is any comparative evidence, so if a plaintiff point to five similarly situated individuals in different protected group that the employer treated differently, that would be relevant. justice jackson?ayor? thank you, cou >> mr. geiser. >> mr. chief justice, may i please occur, ohio agrees it is wrong to hold some litigants to their protected characteristics. this case.s not what happened in when governor dewine took office in january 2019 and appointed a

new cabine level direc of the ohio department of youth services, the juven corrections system, the petitioner was an uncled civil servant,tively a political appointee or claims the department two adverse action against her in the first five months, denying her a promotion and demoting her because of her sexual orientation. after discovery, she could not establish that anybody was motivated by sexual orientation or even knew her sexual orientation, nor the orientation of the unclassified political appointees that she pointso comparers. sh failed to make out a prima facie case under the first step of mcdonnell douglas that should apply for title vii. she did provide evidence that, if otherwise unexplained, raise it an inference of whether that evidentiary standard is framed as ound circumstance or circumstances which could rise ton ference of unlawful discrimination, thi

court has said prima facie case under title vii must be complete gh for the court to enter nt for the plaintiff before the burden shifts for the employer. because the best reading of a sixth circuit judgment a that affirm.d, this court should if the court holds petitioner made out a prima fase on these facts, the mcdonne douglas has effectively two prongs, the court will have made title vii that unusual statute thatmes lability for emoys and swallows what remains about at will employment i welcome the courts questions. >> do you think the sixth circuit's opinion is consistent with your arme here? >> i think, justice thomas, that is the best wato read with the sixth circui was doing. my friendsn e other side have language they can point to about additional or higher burden that we thinkd be scrutinized on that level. >> but it does say that if a

petitioner were of a minority of a different group, that the additional burden would not be necessary. so how is that consistent with your argument? >> i think that with the court was doing was saying just going through the four elements of whatald calls the sample pattern of proof was not enough in this particular case because there was not any evidence to raise the inference of discrimination merely from those four facts. >> when do you think the concree got it wrong? >> with great respect for the judge, we think he latched onto ms. ames said about the relative qualifications,nd so ohio sees it differently fro the judge. >> i think with language, that is absolutely critical language in this opinion, because ames is heterosexual, must make showing in addition to the usual ones prima facie case.

would have been easy to make catchy belong to the relevant minority group here, gay people peers so this is what trt did. >> we cannot retreat hat the court here said, but we think the best way to construe that language is consistent. nevertheless, i think -- >> theway to construe that languages as the language says. >> justice kagan, yes, the court said what it said. the important point is the prima facie step this court has laid out needs to take it comple enough before the employer has any burden under title vii to show an inference of discrimination. >> do you agree that those passages are wrong? >> we are not defending the exact line. >> t exact language, or are you defending something like that language? it is a peculiar situation, isn't it? because this is what trt said, and you are up here and i do not know exactly what to make

of this. do you think that th right wrong?you think that that is >> i think the iat you hold people to different standards because of t protected characteristics is wrong. if there is shot from this case, let reverse discrimination fall out. >> so you agree with the petitioner? >> onhamajor premise point. >> which is thestion. >> we think the question plaintiff do to show that thea prima facie step that tre is an inference of discrimination? and we do not think es did that. and we think saying that what the united states says, just eliminating the two most common reasons -- >> that you all sorted out on remand, right? what is before us is what justice kagan thought. >> our argument is that this court reviews judgments and the judgment is correct. i think everyone here agrees that everyone should be treated equally. >> so what is that treatment? what must a plaintiff to, in

your view? >> under reeves, this coud provide enough evidence that there is a inference of discrimination, also foo seven of burneign, legally ndated presumption of discrimination. >> do we not have the anymore? he is a member of a protected class, suffered an adverse -- is that how you conceive ofed this? you seem be suggesting that eviden to come in s very first stageou have to really establishhat you had been discriminated against. i am not understanding the first stage to be that owners. >> we do not think it is onerous, but this is summary judgment, i think we had six depositionr oath here.if you cannot show any evidenc that it was motived by a protected characteristic when

ey took the adverse action, rtainly if you cannot show adversaction at all, that is not enough to create any burden of production for the employer. elements that mcdonnell douglas laid out, of course i have opted that under this court's guidance. this court said, before this grhas unearthed relevan facts and evidence, it may be difficult for p coordination of a prima facie case. so what those four elements happen to be, this court has directed other courts to never treat them as an exclusive or -- happening is we need a burden shifting test, whichve indicated on several occasions, and itrt of graduated in terms of h get to the ultimate question. and iht that what was necessary to shift the burden to the employer to come up wit reason, or explain, what was no

supposed to be all the evidence that you have related to rimination and that it was just enough that you ings or have enough evidence that establish an inference, that you d more likely than not, then the burden shifts and the employer really has to ask plain what is going on. >> i agree with your characterization, justice jackson, at is what the court says in reeves, making clear that if you ve enough evence at the prima facie stage, that looking alone at that judgment for plaintiff, then an employer has a burden. >> i was wanting to clarify what u were saying to justice and justice kavanaugh. do you agree that if the law and the sixth circuit is as the judge's opinion describes it, that it is wrong? >> i think if that were an accurate characterization, yes. >> so the whole dispute iho we interpret what the sixth

circuit set? >> no,not think that is alone what is at issue, justice baett. the case we cite is a better scription. in this opinion, we asked the department for oral argument and my friends on the other side also asked for oral argument. the court came out with this decision two mthfter -- >> it might have been sloppy and was not stated well, but you agree that if it means what it says, what justice kagan read to you, that you agree it is wrong? >>agrees it is on to treat people differently. >> se said, someone like ms. ames who is a member -- it whether she was straight, she or would have the exactburden and be treated the exact same way under title vii if she sued as someone who was gay and argued that they were discrinated against under title vii, same? >> i think she should have the what --en and the best read of >> no, no, just asking what you think of the statute.

so that is what you think, same for someone who brings race discrimination, someone who brings a woma man who brings a sex discrimination suit, disation against the basis of sex, all of those who agree that the court should apply the same burden and treat them the exact same way? >> we agree with that. >> thank you. >> the only thing i would add is it cannot simply go through mechanical rubric an then the employer has the burden to disprove liabili uer title vii. that is inconsistent with the te of title vii. we that this court said, i point you to page three a friends reply brief, ts unpublished decision from a court circuit that rear take you late what the united states said on page 20 -- re-articulates what the united states says on page 20 of the reef, the important element should be circumstances that rise d for of discrimination. if that is the rubric this court says it should apply in every

case, i think ms. ames hasot made the case. >> so you're not concerned -- you ar the same page as your friends on the other side and it is the central question of h we interpret title vii. you are concerned it will say something more about what kind of evidence anti-plaintiff has to sho no matter what group they belong to? >> yes -- >> and if we did not say that, you would be satisfied with an n that just says it does not satisfy it? >> i think the prima facie case explicitly asks for it, and it do py factor with mcdonnell douglas. mcdonnell douglas is part of a statute trying to make it easier for plaintiffs, b iis not such of the burden is always and everywhere on the regulated pa the title vii standard still requires the plaintiff to make out burden of pr >> so why is it so hard on the employer to ju say why they did not hire someone?

you are making i sound as if by making it a imfacie case, it is unfair to the employer to say we didot hire them, explain why. they do not have to prove th why. >> two responses. number one, the text of the statute allocates the burden not to disprove liability but to approve liability. so the prima facie case needs to be complete enough at that circumstantage befor employer has a burden under the text. secondly, doctrine. this court has said that that case needs to be enough to create a legally mandatory inference of dination. they have to be able to win the case on the prima facie evidence. that is what you're suggestin what the judge basically said you have a situation here where she alleged she was a member of

the majority group. 20 years an employee, great reviews, and all of the sudden she is not hired, and someone who is hireds y and does not have her level of college experience and did not even nt the job. there is something suspicious about that. it can give rise to an inference of discrimination. whether those facts are enough to make out thathe employer's ofred reason is contextual, or pretextual in some way, the court hasn't can't to that yet. ask justice sotomayor, i t the crucial fact here is every circle will points out, every circuit has said thaf an employer is aware of a protected trait, it is not possible to preferred they we motivated by that protected trait. and that -- you do not have to

disprove the negative, it is the burden on the plainat a minimum, to sy knew about your protected characteristic. what the evidence here show is that no one knewim's am -- no one knew ames' sexual ientation. the district court made a factual finding that has not been appealed he but no one knew ms. ames' sexual orientation at the time of the relevant employment decisions. the director testified he did not know a man was gay, even though the record may have suggested that to other people. >> i guess my reaion to a lot ofyou are saying is this, you you agree with your friends on the question that we took this case to decide. the question we presented was whether a majority group plaintiff has to show something more than a minority grou plaintiff, has to show more than y person.

everybody over here says no, you say no, too. that was the question that we took the case to decide. now you are as us to opine on various otherts of h mcdonnell douglas test works, e should think of the first step is doing, then what we should think of the second and third steps as doing. they are really not intertwined at all with that question. whatever mcdonnell douglas does, it does for majority group lantos and minority group plaintiffs alike. so why should we approach the case in that way. >> tponses to that. while we all agree everyone should be treated equally, we do not agree about what that prima facie step actually looks li. >> that is expected -- exactly my point. why would we use this case, is about whether a

majority group plaintiff has an tra burden, to opine on a range of things that have nothing to do hat question? >> what sixth circuit did here, this is my second reason, justice kagan, if the first does not satisfy you, is what we think every court should do ask for enough evidence to raise an inference of discrion. simply going through those four prongs with subbing out racial minority for any particular that.cted group does not do court says ins and six andhis seven. our thought is the court should still affirm, because wha the sixth circuit's judgment did here is what we ask every court to do at the first step of mcdonnell douglas. even if we agree that saying additional burden is a mischaracterization of what this court has said ithpast. >> i have perhaps the same question, what would be wrg with a judgment holding that

the first step of mcdonnelly at douglas if it applies at summary judg that you would then, on remand,e able to argue about what that fourth prongf the first prong in mcdonnell douglas for everybody? what is enough circumstances to give rise to inference of discrimination? making theents to that court, the first instance, normally we are a court of review, not first. >> justice ginsburg was very wise, justice gorsuch. wenot want to make the court should still affirm, defending the judge's -- judgment on behalf of my client, but if the court is going to say prong happens to mean --first >> i am positing a circumstance it does not say anything about

what that first prong means other than to say it applies the same to everybody. >> we agreed that the court should say that at the very minimum. >> we are in radical agreement today on that, it seems to me. seem to be in total agreement. and then, iyour argument is, as alied to everybody, she felt on the fourth prong of the first prong of mcdonnell douglas, perhaps the court should look at that before we do. what is wrong with >> i think there's meing in between those two levels of straction, justice gorsuch. we agree on that first level and think the court can avoid this sortird level down. the second level here -- >> i am lost, four prongs, three prongs, four levels. [laughter] what is wrong with the opinion i outlined to you? >> i think a lot of courts will get the impression that the first prong of the prima facie case, the mcdonnell douglas step one, if it applies equally to

evernd the courts say nothing further about that, that it just meanshe burden is on the employeroducevidence . >> no, why would that be? as the government points out, you point out, everybody points out, you have to show you are a member of a protected class, it is relevant, subject to adverse implement action, and four, where it seems to be thdispute is, was taken out of rcumstances which give rise to unlawful discrimination you say thats not met because relevant decision-makers do not know the plaintiffs sexual orientation. interesting argument. not presented here. a lower court passed on it first. why wouldn't that be a wise course for this court to follow? >> i think it be wise if the court adopted the four prongs read just you read th, stice gorsuch. if the court does not want to say anything more about that, we still think the court can affirm. at the court is going to make sure to say what is at tho- thit

i think we should do but i will throw it ore, which is that if you talk about mcdonnell douglas, thoughtthe employer stated a reason,he whole thing kind of drops out. then as justice gorges- justice gorsuch says, is it based on a stated reason or a ibited characteristic? >> two issues with that one, if you have a case like this where the employ has good evidence that thedinot even know the relevatected christic, the appointer should n he to say if i want to maket argument i also have to for go providing a legitimate reason, if i wa t be able to win on that first on a metal threshold. so under the brady opinion and the d.c. circuit judge there is a good argument that mcdonnell douglas no longer applies. it has set it at trial and it does not apply in a mioto dismiss, what does in the summary judgment?

i ink there needs to be room for the employer to prefer a good reason and use that as an ternative grounds for and the plaintiff did not even meet t prima facie case. the employer should not be forced to choose one of those two possible >> they fired the person because of x, we do not even know they were whatever the characteristic is. i mean, i do not know if you can in prima facie. i am far afield, but as you are aware, i do nothin is for useful, to kind of figure out these cases once the employer has stated a reason. >> i think court sho allow employers to be able to ke that alternative argument. prima facie case was not made either is grounds.easons and >> i agree but they are both arguments for why it was not discriry. the decision to fire the person t based on their sexual orientation or their race.

it was based on something else. >> i think they bothgo to the ultimate question, justi kavanaugh. i think one is a very negative ld sort of argument and the otheis an affirmative sword sort of argument. the prima facie case is there to capture, was there enough evidence to show, sort of freezing time and place with no answer from the employer, the title vii elements could be met, there could be inference of discrimination at the first step? i do not think the court should retreat from those statements made in those cases. >> thank you, counsel. thank you. rebuttal, mr. wang? >> thank you, mr. chief justice. will be brief. i wa to conclude with several members of the calking about this theme, and it is

something that my cocounsel and i have talked about and ntioned in court this morning, which is what i think this case is all about. those are the four it's on the side of this building, equal justice under law. justice under law. i know sometimes we d fulfill that promise, i understand that. but at the heart of this case, at bottom, all ms. ames is asking for is equal ju under law. not more justice, certainly not less. certainly not less because of the colo oher skin or because of her sex or because of her ligion. we are simply asking for equal stice underecause i think that is what title vii says and i think that is consistent with what this court hahe in numerous cases and is consistent with congress' intent in passing a civil rights law to protect the civil rights of all america >> thank you, counsel. the case is submitted. >> the honorable court is