SCOTUS Eases Path for Plaintiffs in “Reverse Discrimination” Cases

The state of employment anti-discrimination law and policy is in flux, with employers and employees alike facing increased uncertainty about their rights and responsibilities. In April of last year, the Supreme Court lowered the standard for proving harm in employment discrimination cases under Title VII. In June, the Court continued that trend when it issued its decision in Ames v. Ohio Department of Youth Services, a major decision that generally makes it easier for members of majority groups to pursue employment discrimination claims (commonly referred to as “reverse discrimination” cases). If you’re wondering how Ames might impact you, a Richmond employment lawyer can help. 

The Basics of Disparate Treatment Claims 

Title VII of the Civil Rights Act 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.” Disparate treatment claims are a type of discrimination claim wherein the plaintiff alleges that their employer treated them differently based on a protected characteristic. Generally, disparate treatment claims allege behavior that, if not overt, is at least more obvious than that alleged in some other types of discrimination claims (e.g., hostile work environment). If you’re dealing with a disparate treatment claim (or think you might be soon), you should consider speaking to a Richmond employment lawyer. 

Ames v. Ohio Dept. of Youth Servs.

The plaintiff in Ames was Marlean Ames, a heterosexual woman who worked as a program administrator in the Ohio Department of Youth Services. In 2019, she applied and was interviewed for a newly created management position, but the agency ultimately hired a different candidate — a lesbian — for that role. The agency then demoted Ames from her program administrator position to a secretarial position and hired a gay man to fill her vacant position. Ames sued under Title VII, alleging that she was denied the promotion and demoted based on her sexual orientation. 

The trial court analyzed Ames’ claim using the three-step framework laid out in McDonnell Douglas v. Green, 411 U.S. 792 (1973): 

1. The plaintiff must establish a prima facie case by producing enough evidence to support an inference of discriminatory motive. (“Prima facie” is Latin for “at first sight” or “at face value.”)
2. If the plaintiff clears that hurdle, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the employee’s rejection 
3. If the employer articulates such a justification, the plaintiff must have an opportunity to show that the stated justification was merely a pretext for discrimination

The court ruled in favor of Ames’ employer, finding that Ames had failed to make a prima facie showing that her employer had acted with a discriminatory motive. It found that plaintiffs who are members of majority groups — in this case, heterosexuals — must show “background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority” in addition to the other evidentiary burdens minority-group plaintiffs must meet. The Court of Appeals for the Sixth Circuit affirmed, finding that Ames had failed to meet her heightened burden. 

If you’re curious about what types of evidence can establish or refute a prima facie showing of disparate treatment, speak with a Richmond employment lawyer. 

The Supreme Court’s Decision 

The Supreme Court noted that, for most plaintiffs, Step 1 of the McDonnell Douglas test is fairly easy — they may establish a prima facie case, for example, by demonstrating that they applied for a position for which they were qualified but were rejected under circumstances “giving rise to an inference” of unlawful discrimination.” But under Sixth Circuit precedent — as Ames learned — members of majority groups also had to establish “background circumstances” to support the suspicion that the defendant was unusual in discriminating against the majority. The Court found that this additional requirement for majority-group plaintiffs is contrary to the text of Title VII. It explained that Title VII makes no distinctions between majority groups and minority groups, but instead uses only the word “individual.” By establishing the same protections for every individual, Title VII leaves no room for courts to impose special requirements on majority-group plaintiffs. The Court thus found that the standard for proving disparate treatment under Title VII does not vary based on whether the plaintiff belongs to a majority group. 

What It Means for Employers

For employers, Ames likely means that they may see an uptick in so-called reverse discrimination cases on all grounds, not just sexual orientation, as the Supreme Court did not so limit its decision. While Ames did not address workplace DEI programs or related employment policies, it could make it easier for majority-group employees to allege that such programs are discriminatory, especially if employees can at least plausibly show that a particular DEI program disadvantages a majority group. On the other hand, the Court did not alter the legal standard for proving disparate treatment. Plaintiffs must still go through all three steps of the McDonnell Douglas framework. 

What It Means for Employees 

For employees — at least the majority-group ones — Ames lowers the threshold for making an initial showing of disparate treatment. Majority-group plaintiffs no longer must prove that their employers are “unusual” in discriminating against them. Generally, this means that employment anti-discrimination suits may become more common among employees who previously may not have pursued them due to their majority-group status. Again, however, Ames does not alter the legal standard for proving discrimination; it merely equalizes it among majority-group and minority-group plaintiffs. However, with the “background circumstances” requirement removed, majority-group plaintiffs are likely to have an easier time overcoming early challenges to their discrimination claims. 

Pursue or Defend an Employment Discrimination Claim With Help From a Richmond Employment Attorney 

With employment discrimination law evolving so rapidly, it’s more important than ever to consult experienced legal counsel before pursuing or defending a discrimination claim. For more information about how Ames might impact you, please contact a Richmond employment attorney at Pierce / Jewett by calling 804-502-2320 or using our online contact form.