circuit judge there is a good argument that mcdonnell douglas no longer applies.t has set it at trial and it does not apply in a motion to dismiss, what does it do in the summary judgment? i think there needs to be room for the employer to prefer a good reason and use that as an alternative grounds for and the plaintiff did not even meet the 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 call in prima facie. i am far afield, but as you are aware, i do nothing that is for useful, to kind of figure out these cases once the employer has stated a reason. >> i think the court should allow employers to be able to make that alternative argument. prima facie case was not made and we have good reasons and either is grounds. >> i agree but they are both arguments for why it was not discriminatory. the decision to fire the person was not based on their sexual orientation or their race. it was based o

explicitlysks for it, and it does not play a factor with mcdonnell douglas. mcdonnell douglas is part of a statying to make it easier for plaintiffs, but it is not such of the burden is always and ever on the regulated part. the title vii standard still requires the plainti tmake out burden of proof. >> so why is it so hard on the employer to just say wy did not hirene? you are making it sounds if by making it a prima facie case, it is unfair to the employer to say we did not hire them, explain why. they do not have to prove the why. >> two responses. number o, e text of the statute allothe burden not to disprove liability but to apliability. so the prima facie case needs to be completenoh at that circumstantial stage before the text.yer has a burden under the secondly, doctrine. this court has said that that case needs tbe enough to create a legal mdatory inference of discrimination. >> you seem to be saying that they have to be able to win the case on the prima facie evidence. at is what you're suggesting. what the judge basic said you have a sit here where

framework for evaluating employment discrimination cases comes under a supreme court case called mcdonnell douglas sort of establishes what we call a burden shifting framework. the plaintiff is responsible for proving, by a preponderance of the evidence, that there's prima facie evidence that they were discriminated against. if they can get over that hurdle at that point, the burden shifts to the defendant to show that they had a nondiscriminatory reason for taking the employment action that they did. and then the plaintiff gets an opportunity to rebut that by saying, hey, what you point to as nondiscriminatory, that's really pretextual your whole aim and design all along was to discriminate against me on the basis of a protected characteristic. if the supreme court does the modest thing here, what they'll say is that test remains in place, regardless of whether you're in a majority group or a minority group. one of the things that they were being asked to do today, even by ohio, which was theoretically the defendant, was to revise that test. that is an even worse case scenario than marlene ames s