Discrimination is discrimination no matter what group someone belongs to right❓ Not necessarily, at least until the U.S. Supreme Court hears a case called Ames v. Ohio Department of Youth Services.
Ames could significantly reshape the landscape of Title VII employment discrimination law, particularly regarding “reverse discrimination” claims.
At the heart of the case is Marlean Ames, a former Ohio youth services worker who claims she was passed over for promotion and later demoted due to her heterosexuality, while LGBTQ candidates advanced within the organization. Ames’s case challenges something called the “background circumstances” test, a judicially created standard applied in some federal courts, which has made it more difficult for individuals in “majority” groups (e.g., white people, men, heterosexuals) to bring forward successful Title VII discrimination claims.
The Background Circumstances Test
The background circumstances test, which currently exists in at least five federal circuits (including the Sixth Circuit, where Ames’s case originated), requires plaintiffs from “majority” groups to meet a higher evidentiary burden to establish a prima facie case of discrimination under Title VII. Specifically, plaintiffs must show that the employer is “unusual” in discriminating against the majority, or provide evidence of a pattern of discrimination against majority groups within the organization. This rule stems from a 1981 D.C. Circuit case called Parker v. Baltimore & Ohio Railroad, where the court introduced the idea that majority-group plaintiffs needed additional proof to support their discrimination claims, given the historical context of bias against minority groups.
Ames’s Argument and Circuit Court Ruling
In Ames’s case, the Sixth Circuit applied the background circumstances test and ruled that she had failed to meet the heightened evidentiary burden. The court concluded that Ames had not provided sufficient evidence to support the claim that her employer discriminated against her based on her heterosexuality. Specifically, Ames did not demonstrate that the decision-makers responsible for her demotion were themselves LGBTQ individuals, nor did she provide statistical evidence showing a pattern of discrimination against heterosexual employees. As a result, her case was dismissed.
Ames’s appeal to the Supreme Court asks for the elimination of the background circumstances test, arguing that it is inconsistent with the plain language of Title VII.
Title VII prohibits employment discrimination on the basis of race, sex, and other protected characteristics but does not make distinctions between majority and minority groups. Ames contends that the test unfairly imposes additional hurdles on majority-group plaintiffs, which are not grounded in the text of the statute.
Broader Implications for Employment Discrimination Law
If the Supreme Court strikes down the background circumstances test, it could have far-reaching consequences for how discrimination claims are handled, particularly for members of majority groups. Removing this test would level the playing field, making it easier for majority-group plaintiffs to bring successful claims of reverse discrimination.
This change could lead to a rise in reverse discrimination lawsuits, as plaintiffs from majority groups—such as white people, men, and heterosexuals—could more easily argue that they were unfairly treated in favor of individuals from minority groups. In particular, employers with diversity, equity, and inclusion (DEI) programs may face increased legal scrutiny if majority-group plaintiffs claim they were disadvantaged by these initiatives. DEI programs that are not carefully crafted with legal compliance in mind could become vulnerable to reverse discrimination claims in circuits where it has previously been applied.
What Likely Happens
Since Title VII does not mention any requirement for majority-group plaintiffs to meet a higher evidentiary standard, the Court may, and I think will, conclude that the background circumstances test is incompatible with the statute. The bottom line is that there is nothing in Title VII to support the background circumstances test, and the test does create a barrier for certain discrimination claims.
Add this case to the list of those to watch in the 2024-2025 term for the court‼️