The U.S. Equal Employment Opportunity Commission and Department of Justice Advocate Against Heightened Evidentiary Standards in Reverse Discrimination Cases Under Title VII
The U.S. Equal Employment Opportunity Commission and Department of Justice Advocate Against Heightened Evidentiary Standards in Reverse Discrimination Cases Under Title VII
Rob Thomas, Of Counsel
As reported in the Rocky Mountain Employer in October, 2024, in Ames v. Ohio Department of Youth Services,[1] the U.S. Supreme Court is poised 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.[2] Argument before the Court is scheduled for February 26, 2025, but, in the meantime, the U.S. Equal Employment Opportunity Commission (“EEOC”) and the U.S. Department of Justice (“DOJ”) have submitted an amicus brief in favor of Petitioner Marlean Ames to argue that the heightened “background circumstances” test for reverse discrimination cases, as applied by the Court of Appeals for the Sixth Circuit, should be abandoned.
Recap of Ames and the “Background Circumstances” Test
Currently, in the Tenth Circuit and in four other federal circuits, 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 or she belongs to a protected class, establish background circumstances that support an inference that the defendant employer is one of those unusual employers who discriminates against the majority as part of the plaintiff’s prima facie case under Title VII of the Civil Rights Act of 1964 (“Title VII”). Ms. Ames contends that she was discriminated against based on her heterosexual orientation, but the Court of Appeals for the Sixth Circuit upheld summary judgment against Ames because she could not show that her employer had the unusual practice of discriminating against heterosexuals or that the decisionmakers behind the employer’s adverse employment actions were members of the minority class (i.e. homosexual).
As noted in Judge Kethledge’s concurrence to the Sixth Circuit’s decision (with which he concurred solely on precedential grounds), it was not meaningfully disputed that Ames had otherwise satisfied the prima facie elements of her claim, but her claim failed solely because of the heightened background circumstances test applied to her reverse discrimination claim.
The EEOC and DOJ Weigh In
Filing on behalf of the United States, the EEOC and DOJ submitted an amicus brief in late December, 2024, urging the Supreme Court to abrogate the background circumstances test and reverse the lower courts’ dismissal of Ms. Ames’ discrimination claim.[3] The agencies focused heavily on the absence of any statutory language in Title VII which warrants the application of a different prima facie standard to plaintiffs if such plaintiffs are members of a majority group. The agencies likewise noted that Title VII and subsequent Supreme Court precedent emphasize that Title VII prohibits discrimination based on protected characteristics, with no regard as to how common or uncommon those characteristics may be. In particular, the agencies relied on the Court’s McDonald v. Santa Fe Trail Transportation Co. decision,[4] in which the Court noted that Title VII’s criteria must be applied uniformly to members of all races, including when the plaintiffs themselves are white.
The agencies likewise noted that the background circumstances test’s focus on the historical treatment of majority class members is inherently inconsistent with Court precedent finding that no defense exists to intentional discrimination based on the fact that an employer ordinarily treats members of a plaintiff’s class fairly. The agencies found that while a plaintiff’s membership in a historically-favored majority class, or the fact that the employer’s decisionmakers may also be members of the plaintiff’s majority class, may be germane to the issue of pretext, the background circumstances tests needlessly front-loads the plaintiff’s evidentiary burden in the plaintiff’s prima facie case, and otherwise requires courts to look to additional, unrelated evidence of the employer’s treatment of majority class members before analyzing whether the named plaintiff was, in fact, a potential victim of discrimination under Title VII. Last, the agencies rebuffed arguments that the background circumstances test is an appropriate “screening” tool to filter out discrimination claims from majority class members that are based on ordinary, legitimate personnel decisions, noting that the burden-shifting framework for Title VII discrimination cases based on circumstantial evidence already accomplishes that task.
Employer Considerations
The EEOC’s and DOJ’s amicus brief on behalf of the United States is a compelling summary of the arguments against applying heightened prima facie discrimination standards to majority group plaintiffs under Title VII. Given that the Tenth Circuit is one of the federal circuits which still adheres to the background circumstances test, whether the Supreme Court will agree with the United States’ logic is of particular significance. Of course, regardless of whether the Supreme Court upholds or abrogates the background circumstances test for reverse discrimination cases, employers should not make any adverse employment decisions based on protected characteristics alone—regardless of whether the affected employees are members of a majority or minority group under Title VII. Campbell Litigation will continue to closely monitor the Ames case as oral argument approaches.
[1] 87 F.4th 822 (6th Cir. 2023), cert. granted, --- S. Ct. ----, 2024 WL 4394128 (Oct. 4, 2024).
[2] See https://www.rockymountainemployersblog.com/blog/2024/10/17/supreme-court-reviews-the-background-circumstances-test-in-reverse-discrimination-cases-potential-implications-for-colorado-employers.
[3]See https://www.supremecourt.gov/DocketPDF/23/23-1039/335322/20241216192608136_23-1039_Ames_Amicus_Brief_iso_Vacatur.pdf for a copy of the agencies’ amicus brief.
[4]427 U.S. 273 (1976).