Supreme Court Rejects Higher Standards for Majority Plaintiffs in Title VII Disparate Treatment Cases

The Supreme Court has voted unanimously to end a Circuit Court split regarding whether members of a “majority group” have additional evidentiary burdens when bringing a case under Title VII of the Civil Rights Act for disparate treatment (intentional) discrimination. In a ruling that was widely expected to reach this conclusion, the Court held that such evidentiary standards or burdens based on “majority” or “minority” status are not supported by the text of Title VII or the Court’s Title VII rulings.The ruling in Ames v. Ohio Department of Youth Services means that so-called “reverse discrimination” cases, wherever they are filed, must be evaluated by the same evidentiary standards as in cases brought by members of minority race, gender, and sexual orientation groups. In other words, the Court has made “reverse discrimination” claims easier to bring, and the presumption is that more such cases will now be filed.

Background

For nearly 50 years, 5 of the 12 federal Circuit Courts of Appeals (covering 20 states and the District of Columbia) required some additional showing for an individual to bring a Title VII disparate treatment case if the protected characteristic the employee claims discrimination against represents a “majority” on the theory that discrimination against a majority group is “unusual” or rare.

The case at issue was filed in the Eastern Division of the Southern District of Ohio, which falls under the jurisdiction of the Sixth Circuit Court of Appeals. The Sixth Circuit imposed a “background circumstances” rule for “reverse discrimination” cases back in 1985 (citing to a D.C. Circuit case from 1981). Under this rule, a plaintiff alleging discrimination against a majority group must overcome the presumption that an “employer who discriminates against the majority” in general is “unusual.”

Majority plaintiffs who failed to make such a showing could have their cases thrown out early in the litigation process for failure to state a case. In other words, courts following the “background circumstances” rule were more skeptical of cases involving discrimination against a majority group, making it harder for the facts of such cases to be heard and adjudicated.

The Case

In Ames, an Ohio woman sued the state’s Department of Youth Services after she was turned down for a promotion, which went to another employee who is lesbian. She then was subsequently demoted from a position she had held for five years, and for which she had received positive performance reviews, and that job was given to a gay man. The plaintiff alleged that the reason for these adverse employment actions was the fact that she is heterosexual, and sued for discrimination based on sexual orientation, citing the Supreme Court’s Bostock decision.

The District Court threw out the case on summary judgment for not providing any evidence of “background circumstances to support the suspicion that the defendant is the unusual employer who discriminates against the majority.” The court noted that this typically requires the plaintiff to show that either a member of the relevant minority group (here, gay people) made the employment decision(s) at issue, or statistical evidence showing a pattern of discrimination by the employer against members of the majority group. The Sixth Circuit upheld the District Court decision, and the case was taken up by the Supreme Court.

Potential Impact

As noted above, the Ames decision removes a barrier for “majority” discrimination cases that did not exist for “minority” cases, so some pundits believe that more “reverse discrimination” cases will now be filed.

Note, however, that the evidentiary standards for ultimately proving a Title VII disparate treatment claim are not changed by this decision, and have always been the same regardless of whether the alleged discrimination is against a “minority” or “majority” group. In other words, it is reasonable to assume that more “reverse discrimination” cases will be filed, but whether those plaintiffs will prevail still depends on the facts of each case.

Whether and to what extent these “background circumstances” rules acted as a deterrent, holding back an avalanche of legitimate “reverse discrimination” cases, remains to be seen. It is worth noting, however, that both the EEOC and the OFCCP have essentially operated under the same philosophy as the Ames decision for decades, regularly enforcing discrimination requirements on behalf of “majority groups” (mainly whites and men). The Court notes a 1976 case that cited favorably to EEOC’s view that Title VII bars discrimination “against whites on the same terms as racial discrimination against nonwhites.” That view was based on EEOC decisions dating back to 1973.

Note also that the Ames case does not directly address “affirmative action” remedies under Title VII. Current Supreme Court precedent allows a Court to order affirmative action as a remedy for actual past discrimination by an employer. The EEOC’s regulations also permit employers to create “voluntary affirmative action plans,” including to address a “manifest imbalance” of underrepresentation in “traditionally segregated job categories.” Here, affirmative action means “actions appropriate to overcome the effects of past or present practices, policies or other barriers to equal employment opportunity.” 29 CFR Part 1608.

To rely on the EEOC’s guidelines, employers have a high bar to clear and must be prepared to show:

• A reasonable self analysis creating a reasonable basis for action, such as identifying employment practices or policies that result in disparate impact or treatment or leave uncorrected the effects or prior discrimination; and
• Reasonable action to address the identified problem, including that the action is temporary and only in place long enough to address the specific objectives.

It is unclear what if any impact the Ames case will have here, but Ames may mean that affirmative action efforts can and should be extended to both “majority” and “minority” groups – and not just used to correct equal employment opportunity concerns impacting “minority groups.”

Looking Ahead

It is worth noting that the Supreme Court did not find in favor of the plaintiff in Ames on her actual discrimination claims. The Supreme Court merely ruled that the District Court must re-evaluate summary judgment without the “background circumstances” test. The Sixth Circuit decision upholding the District Court’s initial dismissal noted that absent the additional evidentiary burden, the plaintiff’s prima facie case “was easy to make,” signaling that Court’s opinion that the case should now be taken up by the District Court.

So, any determination whether Ms. Ames will ultimately prevail in her allegations of discrimination based on sexual orientation is likely still far off, but she is more likely to get her day in court.