Supreme Court Signals Rejection of the “Background Circumstances” Test in Reverse Discrimination Cases

Supreme Court Signals Rejection of the “Background Circumstances” Test in Reverse Discrimination Cases

 Brett A. Whitley, Associate

  Last week, the United States Supreme Court (“SCOTUS”) heard oral argument on Ames v. Ohio Department of Youth Services (“Ames”), a case based on a claim of reverse discrimination and previously discussed in the Rocky Mountain Employer.  The Justices’ comments during the oral argument indicate a strong likelihood that SCOTUS will reject the “background circumstances” test utilized in multiple federal Circuits (including the Tenth Circuit) in reverse discrimination cases, thereby lowering the prima facie burden required to state reverse discrimination claims under Title VII of the Civil Rights Act.

 A Refresher on the Current Legal Standard in the Tenth Circuit for Reverse Discrimination Cases

            On October 17, 2024, the Rocky Mountain Employer discussed SCOTUS’ grant of certiorari in Ames v. Ohio Department of Youth Services,[1] a case involving a former Ohio Department of Youth Services (“ODYS”) employee, Marlean Ames, who claims she was denied a promotion and subsequently demoted for being heterosexual, while LGBTQ candidates were promoted.[2]  As discussed, courts in the Tenth Circuit and elsewhere currently apply a heightened standard known as the background circumstances test (the “Test”), which deviates from the traditional prima facie standards employed in discrimination claims,[3] in order for a plaintiff to establish a prima facie case of reverse discrimination.  Under the 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 or she 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, or that the decisionmakers behind the alleged adverse employment action were members of a minority group. 

 Oral Argument on Ames v. Ohio Dep’t of Youth Services

            During her oral argument before SCOUTS, Ames argued that the Sixth Circuit’s application of the Test to uphold the dismissal of her claims cannot stand, as the application of the Test contradicts Title VII since Title VII prohibits discrimination on the basis of one’s protected class (race, color, religion, sex, and national origin), regardless of whether one’s protected class represents the majority, such as Christian, heterosexual, or white.

             Somewhat surprisingly, ODYS did not defend the Sixth Circuit’s implementation of the Test during oral argument.  In fact, ODYS agreed that Ames should not have to satisfy the heightened burden imposed by the Test.  However, ODYS argued that regardless of the Sixth Circuit’s implementation of the Test, the Sixth Circuit’s ruling should be left untouched because Ames failed to prove a prima facie case due to her inability to demonstrate that ODYS was aware of her sexual orientation or that its choices to not promote and demote her were motivated by discriminatory intent.  However, Justice Elena Kagan seemingly disregarded this argument, calling the language of the Test “absolutely critical” to SCOTUS’ determination of the case.

             In light of the parties’ arguments, Justice Neil Gorsuch remarked that the parties’ seemed to be “in radical agreement” that, as applied by the Sixth Circuit, the Test is an improper bar to plaintiffs establishing prima facie cases of reverse discrimination.  Justice Samuel Alito further indicated the “background circumstances” test would be rejected by reasoning that times have changed since 1981 when the Test was first articulated and today, as it is more likely that employers may discriminate against the majority when making employment decisions.  Justice Brett Kavanaugh also echoed Ames’ oral argument by commenting that Title VII does not draw distinction between majority and minority status.  Even Justice Kagan, one of the few liberal voices in the Court, expressed concern that the Test was at odds with Title VII.  Therefore, in light of the parties’ oral arguments and the justices’ comments during same, it appears likely that SCOTUS will hold that the Test cannot be applied in cases alleging reverse discrimination.

 Employer Considerations/Key Takeaways

            Presuming SCOTUS will reject the Test, employers may see an increase in the number of reverse discrimination cases being alleged, particularly given the current political climate and the Trump Administration’s open hostility towards both public and private DEI initiatives.  However, even without the benefit of the Test, employers may defend against reverse discrimination cases just as they would with any other discrimination case, such as by identifying a legitimate, nondiscriminatory reason for the adverse employment action. Moreover, as discussed in the Rocky Mountain Employer’s January 30, 2025, post,[4] DEI programs that do not conflict with federal laws like Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, or the Americans with Disabilities Act, are still legal.  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] 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] 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). 

[4] See https://www.rockymountainemployersblog.com/blog/2025/1/30/the-trump-administration-brings-attack-on-illegal-dei-policies-to-the-private-sector.