Supreme Court Reviews the “Background Circumstances” Test in Reverse Discrimination Cases: Potential Implications for Colorado Employers
Mayowa Gbenro, Associate
The U.S. Supreme Court is set to review how reverse discrimination claims are assessed under Title VII of the Civil Rights Act and resolve an ongoing Circuit split on the issue. The decision may have far-reaching consequences for employers in Colorado, particularly regarding the structure and implementation of diversity, equity, and inclusion (DEI) initiatives.
The Supreme Court recently granted certiorari in Ames v. Ohio Department of Youth Services,[1] a case involving a former Ohio Department of Youth Services employee, Marlean Ames, who claims she was denied a promotion and subsequently demoted for being heterosexual, while LGBTQ candidates were promoted. Ames’ case brings into focus the judge-created legal standard often applied in the Sixth, Seventh, Eighth, Tenth, and District of Columbia Circuits to reverse discrimination claims under Title VII.
The Current Legal Standard within the Tenth Circuit: the “Background Circumstances” Test
In reverse discrimination cases, courts within the Tenth Circuit currently apply a heightened standard known as the “background circumstances” test in order for a plaintiff to establish a prima facie case of reverse discrimination. Under this test, a plaintiff who is part of a majority group (such as a white person or a heterosexual individual) must, in addition to showing that he belongs to a protected class, establish background circumstances that support an inference that the defendant is one of those unusual employers who discriminates against the majority. This heightened standard deviates from the prima facie standard applied in traditional discrimination claims, where a minority plaintiff must only show that he or she is a member of a protected group in order to establish the first required element of a prima facie discrimination claim.[2]
Review by the U.S. Supreme Court
Ames appealed to the Supreme Court after the Court of Appeals for the Sixth Circuit upheld the dismissal of her claims. The Court of Appeals found that she had failed to meet the background circumstances requirement because she did not present sufficient evidence to establish a pattern of discrimination against heterosexual employees—particularly since the decision-makers behind the alleged adverse employment actions were heterosexual.
In a concurring opinion, however, Circuit Judge Kethledge sharply criticized the “background circumstances” test, which the Court was bound to apply since the test inherently discriminates against majority members of protected classes by placing a greater burden upon them to state claims for discrimination under Title VII. In other words, the test treats some persons worse than others on grounds that Title VII forbids (race, color, sex, national origin, etc.). Judge Kethledge concluded the concurrence by inviting the Supreme Court to address the issue and resolve the split among the circuit courts.
Employer Considerations
The Supreme Court’s decision to take up the case signals that it may be ready to reconsider the validity of the background circumstances test. If the Supreme Court overrules the “background circumstances” test, one possible ramification could be the proliferation of reverse discrimination cases—particularly relating to employers’ application of DEI initiatives to make hiring and other employment-related decisions. This is clearly of importance to Colorado employers, given that Colorado falls within the Tenth Circuit. If the Court elects to apply the same prima facie standards to both traditional discrimination claims and reverse discrimination claims, employers may face liability if they blindly rely on their own DEI initiatives in order to make employment decisions on the basis of race or other protected classes. Colorado employers should keep a close watch on the Ames case and, in the meantime, evaluate their own DEI policies and initiatives (if any) to help mitigate the risk of reverse discrimination claims. Campbell Litigation will continue to monitor the progress of this case and its potential impact on Colorado employers.
[1] Ames v. Ohio Dep't of Youth Servs., 87 F.4th 822 (6th Cir. 2023), cert. granted, --- S. Ct. ----, 2024 WL 4394128 (Oct. 4, 2024).
[2] The prima facie elements for traditional disparate treatment discrimination claims are 1) the plaintiff belongs to a protected class; 2) the plaintiff was otherwise qualified for the position at issue; 3) the plaintiff suffered an adverse employment action, and; 4) the adverse employment action took place under circumstances giving rise to an inference of discrimination. The background circumstances test affects the first element of this test, but does not affect the remaining prima facie elements. See Argo v. Blue Cross & Blue Shield of Kansas, Inc., 452 F.3d 1193, 1201 (10th Cir. 2006).