“Reverse Discrimination” Cases Subject to Same Evidentiary Standard Says Supreme Court

Can members of a majority group be subject to a heightened pleading standard for their Title VII discrimination claims? The United States Supreme Court answered this question with a unanimous “no” in Ames v. Ohio Department of Youth Services. The Court’s decision resolves a Circuit split and disposes of the “background circumstances” standard long applied by certain courts, which required majority group member plaintiffs to make an extra showing, as part of their prima facie or initial case of discrimination, that their employer is the “unusual employer who discriminates against the majority.” While disparate treatment discrimination claims are still generally analyzed under the traditional three-step burden shifting framework set forth in McDonnell-Douglas v. Green, employers should be aware that the Ames decision may result in an uptick of so-called “reverse discrimination” cases. 

The Supreme Court Removes an Evidentiary Barrier for Majority Group Member Plaintiffs

Ames involved a heterosexual employee alleging discrimination after she was first passed over for a promotion in favor of a lesbian woman and later demoted with a gay man filling her old role. A lower court dismissed her claim after applying the “background circumstances” rule, reasoning that as a majority group member (i.e., heterosexual), she did not show “background circumstances” supporting the suspicion that her employer “is that unusual employer who discriminates against the majority.” Typically, that showing would be made by presenting “evidence that a member of the relevant minority group (here, gay people) made the employment decision at issue, or with statistical evidence showing a pattern of discrimination . . . against members of the majority group.” The case made its way to the Supreme Court who vacated the judgment against the employee and instructed the lower court to apply the appropriate prima facie standard.

Delivering an opinion for a unanimous Court, Justice Jackson concluded “that Title VII does not impose [] a heightened standard on majority group plaintiffs.” Instead, the language of Title VII applies to all individuals without any majority/minority group discrimination distinction. The Court also highlighted case precedent, notably its 1971 decision Griggs v. Duke Power Co., where the Court stated that “[d]iscriminatory preference for any group, minority or majority, is precisely and only what Congress has proscribed” in Title VII (emphasis added). Further, the Court wrote that the “background circumstances” rule disregards the Court’s “instruction to avoid inflexible applications” of the first prong of the three-prong test in McDonnell-Douglas “by uniformly subjecting all majority-group plaintiffs to the same, highly specific evidentiary standard in every case.” 

Where Does This Leave Employers?

First, employers should reconfirm that their anti-discrimination policies and procedures are drafted to clearly apply to and otherwise protect all employees. Similarly, employers should be appropriately responsive to any discrimination complaints coming their way from majority group members.

Second, employers should consider where Ames fits into the current DEI landscape. Against the backdrop of the Trump administration’s recent targeting of unlawful DEI programs and policies (discussed here, here, here and here) and the Supreme Court’s decisions in Muldrow v. City of St. Louis, Mo. (i.e., lowering the standard to prove that an employee suffered an adverse employment action) and Students for Fair Admissions v. Harvard (i.e., rejecting the use of racial quotas in some education-based affirmative action programs), the door to additional “reverse” discrimination claims has been opened further. But there will likely be more to come still as certain members of the Court continue their focus on the parameters of lawful DEI programs. In a footnote in his concurrence, Justice Thomas noted his belief that “American employers have long been ‘obsessed’ with ‘diversity, equity, and inclusion’ initiatives and affirmative action plans” – “[i]nitiatives” which “have often led to overt discrimination against those perceived to be in the majority.” Employers, therefore, should continue to review their DEI programs to ensure compliance with applicable law. 

Third, Justice Thomas’ concurrence went even further and he invited the Court to revisit the validity of the long-standing McDonnell-Douglas burden shifting framework on which litigants and courts have relied for decades. Justice Thomas – who has previously called this framework into question – ended his concurring opinion by likewise inviting “litigants and lower courts [] to proceed without the McDonnell-Douglas framework,” noting that the Supreme Court “has never required anyone to use it.” While only Justice Gorsuch joined in Judge Thomas’ concurrence, it remains to be seen if this issue will reach the Court’s docket in coming terms, and employers should continue to pay attention to additional legal developments. 

Mintz’ employment team stands ready to assist employers prevent discrimination and harassment in the workplace and evaluate their diversity, equity, and inclusion programs and policies.

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