Supreme Court Lessens Burden of Proof in so-called Reverse Discrimination Cases
In Ames v. Ohio Department of Youth Services, the Supreme Court of the United States unanimously vacated and remanded the Sixth Circuit’s decision imposing a heightened evidentiary standard on plaintiffs claiming Title VII discrimination that are members of a majority group—in that case, heterosexuals.
Title VII bars employers from intentionally discriminating against employees and candidates based on race, color, religion, sex, or national origin. To make out a Title VII claim for failure to hire, a plaintiff must typically show that they applied for an available position, were qualified for the position, and were nonetheless rejected under circumstances giving rise to an inference of unlawful discrimination. In some circuits, majority-group plaintiffs were required to overcome an extra hurdle and show “background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.” The Second Circuit is not among the circuit courts that imposed this requirement.
In Ames, the plaintiff-employee, a heterosexual woman, was employed with the Ohio Department of Youth Services (the “Department”) as a program administrator. In 2019, she interviewed for a management position but was ultimately passed over for another candidate—a lesbian woman. The plaintiff was also demoted to a secretarial role and a gay man was hired to fill her previous position as program administrator. She subsequently filed a Title VII lawsuit against the Department alleging that she was denied the promotion and demoted because of her sexual orientation.
The District Court, applying the background circumstances rule, granted the Department’s motion for summary judgment finding that the plaintiff failed to satisfy her burden of proof because she failed to allege any background circumstances supporting her claim of discrimination. The Sixth Circuit affirmed the lower court’s decision and rationale, prompting the plaintiff to seek review from the country’s highest court. The Supreme Court found that the background circumstances rule could not be squared with the text of Title VII because the text of Title VII “draws no distinctions between majority-group plaintiffs and minority-group plaintiffs. The provision focuses on individuals rather than groups, barring discrimination against ‘any individual’ because of protected characteristics.” Although this holding did not resolve the plaintiff’s underlying discrimination claim, it makes clear that majority-group plaintiffs need not meet a higher evidentiary standard to successfully bring discrimination claims under Title VII.
Because the Second Circuit never applied the background circumstances rule, employers within the Second Circuit (New York, Connecticut, and Vermont) need not anticipate any significant change in how these claims are evaluated. However, the Supreme Court’s decision may lead to an increase in so-called “reverse discrimination” lawsuits being filed. This is particularly true given the number of recent and high-profile challenges to diversity, equity, and inclusion (“DEI”) programs. In addition, Andrea Lucas, the Acting Chair of the EEOC, issued a statement applauding the Supreme Court’s decision in Ames and stating that “the EEOC is committed to dismantling identity politics that have plagued our employment civil rights laws, by dispelling the notion that only the ‘right sort of’ plaintiff is protected by Title VII.” Lucas also noted that following the Ames decision, employers are not shielded “from any race or sex discrimination that may arise from those employers’ DEI initiatives,” confirming further the EEOC’s focus on scrutinizing DEI programs under the lens of “reverse discrimination.”
Going forward, employers should continue to properly document all employment decisions and ensure that all such decisions are supported by legitimate business reasons. Employers with questions or related concerns should contact Sabrina Jorge at sjorge@fglawllc.com or any other attorney at the Firm.
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