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On Monday, the U.S. Supreme Court denied certiorari in Hittle v. City of Stockton, California, a religious employment discrimination case. Justice Clarence Thomas, joined by Justice Neil Gorsuch, authored an opinion dissenting from the denial of certiorari. The case involves former fire chief Ron Hittle, who was fired by the city of Stockton after attending a leadership conference at a church.

The lower courts ruled against Hittle’s Title VII employment discrimination claim in part because they said he failed to carry his burden under the Supreme Court’s McDonnell Douglas burden-shifting framework. Hittle asked the Supreme Court to reconsider the judge-made framework as inconsistent with the text of Title VII, inconsistent with the summary judgment standard in Federal Rule 56, and inconsistent with recent precedent clarifying the “but-for” causation standard.

Although the Supreme Court likely sought to create a plaintiff-friendly roadmap when it established the McDonnell Douglas framework in 1973, the framework has evolved into an obstacle that prevents meritorious cases from reaching a jury.

In Hittle’s case, for instance, Justice Thomas wrote that there was “ample” evidence of discriminatory intent, but that the McDonnell Douglas framework “distort[ed]” the lower court’s analysis at the summary judgment stage. He posited that “a Title VII claim should survive summary judgment so long as the plaintiff establishes a genuine dispute of material fact about each element of his claim.” In other words, the only question that should have been at issue was whether there was sufficient evidence for a reasonable jury to find religious discrimination. By contrast, “some courts treat McDonnell Douglas as a substantive legal standard that a plaintiff must establish to survive summary judgment or to ultimately prove a claim.”

“I am not aware of many precedents that have caused more confusion than this one,” Thomas wrote in the dissent. The Supreme Court should have taken Hittle’s case, he said, to reconsider the McDonnell Douglas framework that has sowed “widespread confusion” among lower courts. He noted that “[a] remarkable number of lower court judges have gone out of their way to describe the chaos sown by McDonnell Douglas.” Indeed, 11th Circuit Judge Kevin Newsom recently criticized the framework in a notable concurrence in Tynes v. Florida Department of Juvenile Justice.

The dissent explained that the framework is not grounded in “in the text of Title VII or any other source of law. The Court appears to have made it out of whole cloth.” It was also created at a time when Title VII cases were only bench trials, rather than jury trials. “Because the McDonnell Douglas framework was designed for use in a bench trial, the language this Court has used to describe the framework does not neatly track the plaintiff’s summary-judgment task.” Thomas concluded that, “Whatever the origins of the confusion, it is producing troubling outcomes on the ground.”

A restoration of the normal summary judgment standard in place of the McDonnell Douglas quagmire would assist plaintiffs alleging religious discrimination. It is common in religious discrimination cases, more than in other cases, for an employer to admit that he is taking adverse action because of an employee’s religious beliefs or practices—finding them offensive or inconvenient, for example. But with its unjustified focus on requiring an employee to disprove an employer’s proffered reason for its actions as mere “pretext,” the McDonnell Douglas test often misleads lower courts and distorts the analysis. If there is evidence of religious or other forms of discrimination, then the employer’s proffered reason for his discriminatory action should be irrelevant. As in all other civil cases, material questions of fact should be decided by a jury.

Despite the cert denial, Justice Thomas’s dissenting opinion lays the groundwork for a future challenge. Because of the numerous criticisms of and problems with McDonnell Douglas, the Supreme Court may well decide to take up the issue and correct the confusion in the near future.