Supreme Court Levels The Playing Field For Reverse Discrimination Claims

Reversing course on reverse discrimination claims, the U.S. Supreme Court unanimously overruled the Sixth U.S. Circuit Court of Appeals’ use of the “background circumstances” rule in employment discrimination claims, which required members of a majority group to satisfy a heightened evidentiary standard to prevail on a Title VII claim.

The case involved Marlean Ames, a heterosexual woman, who started working for the Ohio Department of Youth Services in 2004.

In 2019, she applied for a management position that was given to a lesbian woman. Ames was then demoted from her role, and a gay man was hired to fill her previous position.

She sued under Title VII, alleging discrimination based on her sexual orientation.

Applying the McDonnell Douglas framework for evaluating disparate treatment claims, the district court relied on circuit precedent to find that Ames failed to make a prima facie case showing that the agency acted with a discriminatory motive because she had not presented evidence of “background circumstances”, suggesting that the agency was the rare employer who discriminates against members of a majority group.

The Sixth Circuit affirmed, again applying the background circumstances rule.

Recognizing a circuit split as to whether majority-group plaintiffs were subject to a different evidentiary burden than minority-group plaintiffs at the first step of a McDonnell Douglas analysis, the Supreme Court granted cert. 

In an opinion authored by Justice Ketanji Brown Jackson, the Court reversed.

The background circumstances rule is inconsistent with Title VII’s text and precedents, the justices explained, as Title VII prohibits discrimination against any individual based on protected characteristics, without distinguishing between majority and minority groups.

As a textual matter, Title VII’s disparate-treatment provision draws no distinctions between majority-group plaintiffs and minority-group plaintiffs. Rather, the provision makes it unlawful “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”

“By establishing the same protections for every ‘individual’ – without regard to that individual’s membership in a minority or majority group – Congress left no room for courts to impose special requirements on majority-group plaintiffs alone,” the Court wrote.

Supreme Court precedent reinforces this understanding of the statute, Jackson said, with case law making clear “that the standard for proving disparate treatment under Title VII does not vary based on whether or not the plaintiff is a member of a majority group. The ‘background circumstances’ rule flouts that basic principle.”

In addition, the “background circumstances” rule ignored the Court’s instruction to avoid inflexible applications of McDonnell Douglas’s first prong, by uniformly subjecting all majority-group plaintiffs to the same, highly specific evidentiary standard in every case.

“As the Sixth Circuit observed, the rule effectively requires majority-group plaintiffs (and only majority-group plaintiffs) to produce certain types of evidence – such as statistical proof or information about the relevant decisionmaker’s protected traits – that would not otherwise be required to make out a prima facie case,” the Court said. “This Court has long rejected such ‘inflexible formulation[s]’ of the prima facie standard in disparate-treatment cases. We do so again today.”

While the agency attempted to argue that the “background circumstances” rule did not operate to subject majority-group plaintiffs to a heightened evidentiary standard, the justices were not persuaded, calling the contention “directly at odds” with the Sixth Circuit’s description of the rule and its application.

“The Sixth Circuit has implemented a rule that requires certain Title VII plaintiffs – those who are members of majority groups – to satisfy a heightened evidentiary standard in order to carry their burden under the first step of the McDonnell Douglas framework,” Jackson wrote. “We conclude that Title VII does not impose such a heightened standard on majority-group plaintiffs. Therefore, the judgment below is vacated, and the case is remanded for application of the proper prima facie standard.”

To read the opinion in Ames v. Ohio Department of Youth Services, click . 

Why it matters: The unanimous Court had little trouble rejecting the “background circumstances” test that had been used in the Sixth, Seventh, Eighth, Tenth and D.C. Circuits, finding it at odds with the text of Title VII as well as its own jurisprudence. Employment lawyers should also note a concurring opinion authored by Justice Clarence Thomas, and joined by Justice Neil Gorsuch, writing separately to “highlight the problems that arise when judges create a textual legal rules and frameworks,” and stating that he would be “willing to consider whether the McDonnell Douglas framework is a workable and useful evidentiary tool.”