The U.S. Supreme Court has granted certiorari in Ames v. Ohio Department of Youth Services, a case that could significantly alter the landscape of employment discrimination law. At issue is whether courts should apply a heightened "background circumstances" test to discrimination claims brought by members of majority groups. The Court's decision could have far-reaching consequences for how reverse discrimination cases are evaluated and potentially open the door for more such claims to proceed to trial.
Marlean Ames, a heterosexual woman over 40, had a lengthy career with the Ohio Department of Youth Services (DYS), culminating in her role as Prison Rape Elimination Act (PREA) Administrator. In 2019, Ames applied for a promotion to Bureau Chief but was passed over in favor of a younger gay woman. Shortly thereafter, she was demoted from her PREA Administrator position and replaced by a younger gay man.
Ames filed suit against DYS, alleging discrimination based on her sex, sexual orientation, and age. After the district court dismissed most of her claims, her remaining Title VII sex discrimination claim was rejected at summary judgment. The Sixth Circuit affirmed, holding that Ames failed to demonstrate the necessary "background circumstances" to establish a prima facie case of reverse discrimination based on sexual orientation.
Several circuit courts, including the Sixth Circuit, require majority-group plaintiffs alleging reverse discrimination to show "background circumstances" that suggest the defendant employer is the "unusual employer who discriminates against the majority." This heightened standard is predicated on the assumption that discrimination against majority groups is relatively uncommon.
In Ames' case, the Sixth Circuit concluded she failed to establish background circumstances because the key decision-makers were heterosexual and she provided no statistical evidence of discrimination against heterosexuals at DYS. The court rejected Ames' argument that her own alleged experiences of discrimination were sufficient to show a pattern.
The application of a background circumstances test to reverse discrimination claims has created a clear circuit split: the D.C., Sixth, Seventh, Eighth, and Tenth Circuits apply the test; the Third and Eleventh Circuits have explicitly rejected it; the First, Second, Fourth, Fifth, and Ninth Circuits do not apply it.
Courts rejecting the test have said that it imposes an unfair additional burden on majority plaintiffs and is inconsistent with the text of Title VII, which prohibits discrimination against "any individual" regardless of their protected class status.
The Supreme Court's eventual ruling in Ames could have far-reaching effects on how reverse discrimination cases are handled. If the Court strikes down the background circumstances requirement, it would remove a significant hurdle for majority-group plaintiffs in several circuits. This could lead to more reverse discrimination claims surviving the prima facie stage and proceeding to discovery and trial. For employers in affected circuits, this outcome would likely result in increased litigation costs as more cases clear initial hurdles. They may also need to more carefully document non-discriminatory reasons for adverse employment actions against majority-group employees. From the employee perspective, eliminating the test would level the playing field, allowing majority plaintiffs to more easily establish a prima facie case of discrimination using the traditional McDonnell Douglas framework. This could be particularly impactful for reverse discrimination claims based on characteristics like sexual orientation, where majority status may be less clear-cut than with race or gender.
The Court could opt to uphold the background circumstances test but provide clearer guidance on its application. This might include specifying what types of evidence are sufficient to establish background circumstances or setting a more defined threshold for plaintiffs to meet. A ruling along these lines would maintain higher barriers for reverse discrimination plaintiffs but potentially make the standard more predictable and uniformly applied across circuits. Both employers and employees would benefit from increased clarity around what is required to establish or defend against these claims.
The Court might decide that the background circumstances test is appropriate for some types of reverse discrimination claims (e.g., race) but not others (e.g., sexual orientation). This approach could be based on societal or workplace demographics and the relative rarity of discrimination against different majority groups. Such a nuanced ruling would lead to varying standards depending on the protected characteristic at issue. This would require both employers and employees to carefully consider the specific type of reverse discrimination being alleged when evaluating potential claims.
While Ames specifically concerns Title VII, the Court's reasoning could potentially affect interpretation of other anti-discrimination statutes like the Age Discrimination in Employment Act (ADEA) or Americans with Disabilities Act (ADA). If the Court grounds its decision in the broad language prohibiting discrimination against "any individual," similar logic might apply to these other laws as well.
The Supreme Court's decision to hear Ames v. Ohio Department of Youth Services sets the stage for a potentially landmark ruling on reverse discrimination claims. By resolving the circuit split on the background circumstances test, the Court has an opportunity to provide much-needed clarity and consistency in this area of employment law. For employees, the most favorable outcome would be the elimination of the background circumstances requirement altogether. This would remove an often-insurmountable barrier for majority-group plaintiffs and reinforce that Title VII protects all individuals from workplace discrimination, regardless of their majority or minority status. Even if the Court upholds some form of the test, clearer guidance on its application would be beneficial. This would allow employees considering reverse discrimination claims to better evaluate the strength of their case and the evidence needed to move forward.
It's important to note that eliminating or modifying the background circumstances test would not guarantee success for reverse discrimination plaintiffs. They would still need to prove their case under the traditional McDonnell Douglas framework or through direct evidence of discrimination. However, it would give them a fairer opportunity to have their claims heard. For minority employees, there may be concerns that making it easier to bring reverse discrimination claims could undermine efforts to address systemic inequalities in the workplace. However, proponents of eliminating the test argue that true equality under the law requires that all individuals, regardless of their majority or minority status, have equal access to legal remedies for discrimination.
The Supreme Court's upcoming decision in Ames v. Ohio Department of Youth Services has the potential to significantly reshape the landscape of reverse discrimination litigation. By addressing the circuit split on the background circumstances test, the Court can provide much-needed clarity and consistency in how these cases are handled across the country.