Supreme Court Signals it Will Reject Heightened Burden for Majority Group Plaintiffs in “Reverse Discrimination” Employment Claims

This reverse discrimination case comes before the Court at a time when the topic of diversity, equity and inclusion in the workplace is under fire. The plaintiff in the case, Marlean Ames — a heterosexual woman — worked for the Ohio Department of Youth Services (“ODYS”) for approximately 15 years prior to applying for a position that would be a promotion. She did not receive the promotion, and, shortly thereafter, was demoted and given a reduction in pay. Both the individual appointed to the job for which Ames applied, as well as the individual who filled the role from which she was demoted, were gay (one female, one male). Ames filed a Title VII claim alleging she was discriminated against on the basis of her sexual orientation.

In order to establish a prima facie case of discrimination under Title VII, where a plaintiff lacks direct evidence, the traditional McDonnell Douglas burden-shifting analysis — established by the Supreme Court in 1973 — applies. The plaintiff must first demonstrate that: (i) she is a member of a protected class; (ii) she was qualified for and applied for an available position; (iii) despite being qualified, she was rejected for the position; and (iv) she remained available after the plaintiff’s rejection, and the defendant-employer continued to seek applicants from persons of the plaintiff’s qualifications. The burden then shifts to the employer to articulate a legitimate, nondiscriminatory reason for the employment action — a standard that is typically quite easily met. Then, the plaintiff must demonstrate that the employer’s proffered reason was a pretext for discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

In Ames, the district court granted summary judgment in favor of the ODYS. The Sixth Circuit upheld that decision, explaining that plaintiffs in “reverse discrimination” cases must make an additional showing beyond the McDonnell Douglas standard that “background circumstances . . . support the suspicion that the defendant is that unusual employer who discriminates against the majority.” Under such a standard, majority-group plaintiffs need evidence that a member of the relevant minority group made the employment decision at issue, or statistical evidence showing a pattern of discrimination by the employer against members of the majority group.

In addition to the Sixth Circuit, this “background circumstances” requirement has been adopted in the Seventh, Eighth, Tenth, and D.C. Circuits. It has been expressly rejected by the Third and Eleventh Circuits. Likewise, current guidance from the Equal Employment Opportunity Commission disclaims the heightened standard for majority-group plaintiffs.

In its opinion, the Sixth Circuit observed the facts pled by Ames would satisfy the usual prerequisites for establishing a prima facie case of discrimination: (i) her claim is based on sexual orientation, which is a protected ground under Title VII; (ii) she was demoted from the position she held for five years, with reasonably favorable reviews; and (iii) she was replaced by a gay man, and, as to the higher level job to which she previously applied, ODYS selected a gay woman. However, it then held that, because Ames is heterosexual, she must make a showing in addition to the usual ones for establishing a prima-facie case — i.e., she must prove “background circumstances.”

The “background circumstances” rule was first applied by the D.C. Circuit in 1981 in Parker v. Baltimore & Ohio Railroad, 652 F.2d 1012 (D.C. Cir. 1981). In that case, a white man claimed he was discriminated against when jobs were instead given to black and female applicants. The D.C. Circuit explained that, although whites are a protected group under Title VII, “it defie[d] common sense to suggest that the promotion of a black employee justifies an inference of prejudice against white co-workers in our present society.”

During Wednesday’s oral argument, counsel for Ames responded in the affirmative when asked by Justice Brett Kavanaugh, “so all you want for this case is a really short opinion that says discrimination on the basis of sexual orientation, whether it’s because you’re gay or because you’re straight, is prohibited, and the rules are the same whichever way that goes?”

On behalf of the government, the Assistant to the Solicitor General, argued, “The court of appeals applied a different and more difficult standard to Petitioner because it considered her a member of the majority, but Title VII draws no distinctions between plaintiffs based on their race, religion, sex, or other protected characteristic. That alone is reason to vacate the decision below . . . the Court required evidence, reason to suspect an employer usually discriminates against a group, that the statute does not, and it required more evidence to make out a prima facie case than this Court has held is necessary, including in McDonnell Douglas itself.”

In an arguably unusual move, counsel for ODYS agreed in principle, stating, “Ohio agrees it is wrong to hold some litigants to a higher standard because of their protected characteristics . . . I think that everyone here agrees that everyone should be treated equally,” but, he went on to support his client’s request that the Court affirm the Sixth Circuit ruling on the basis that Ames did not provide evidence raising an inference of discrimination. Justice Elena Kagan highlighted the harmony in the chambers, “You say you agree with your friends on the question that we took this case to decide. The question presented is whether a majority-group plaintiff has to show something more than a minority-group plaintiff, here, whether a straight person has to show more than a gay person. Everybody over here says no. You say no too. That was the question that we took the case to decide.”

While a ruling on the case is not expected until the summer, the range of questions and discussion during oral argument strongly suggest that the Court will issue a narrow opinion rejecting the “background circumstances” rule.