The United States Supreme Court recently heard oral argument in a case that may result in the end of a heightened evidentiary requirement that majority-group plaintiffs must meet in certain federal circuits to prove a claim of discrimination under Title VII of the Civil Rights Act of 1964. Based on the comments and questioning from several Supreme Court Justices during that oral argument, the Supreme Court may reject that heighted standard applied by a minority of Circuit Courts and find that the same burden of proof applies to all groups of plaintiffs (minority or majority) bringing a claim of discrimination under Title VII.
Title VII and Background Circumstances Test
Title VII prohibits covered employers from taking adverse employment actions against employees or job applicants based on the employee's or applicant's protected class (i.e., race, color, national origin, religion and sex (including gender, pregnancy, sexual orientation, and gender identity)). (42 U.S.C. §2000e-2). Prohibited discrimination under Title VII also covers what is often called "reverse discrimination" cases where individuals in traditionally majority groups suffer adverse employment actions due to their protected class. A minority of federal Circuit Courts, however, have for years required plaintiffs in majority-groups to meet an additional burden to prove their claims of discrimination compared to plaintiffs in minority-groups who make similar claims.
A plaintiff who claims disparate treatment discrimination in violation of Title VII must establish that the employer intended to discriminate against the plaintiff based on the plaintiff's protected class. A plaintiff may do so by either putting forward (i) direct evidence that the employer's discriminatory animus motivated the adverse employment action or (ii) circumstantial evidence by shifting the burden of production between the parties to determine the underlying reason for an adverse employment action.
Plaintiffs who present their case based on circumstantial evidence must meet a three-part test. Under the burden shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), plaintiffs must first carry the burden of establishing a prima facie case, which is not an onerous burden. Once the prima facie case is met, the burden shifts to the employer to present a legitimate nondiscriminatory reason for the action. The burden then returns to the plaintiff to prove that the employer's reason for the action was pretext. The ultimate burden of proving intentional discrimination is always on the plaintiff.
Plaintiffs may generally establish a prima facie case by showing (1) that they are a member of a protected class; (2) that they were subject to an adverse employment decision; (3) that they qualified for the relevant position; and (4) that their employer treated more favorably a similarly qualified person who was not a member of the same protected class. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Essentially, the application of this prima facie prong of this tripartite test is before the Supreme Court.
Decades ago, the U.S. Court of Appeals for the DC Circuit established an additional "background circumstances" rule in Parker v. Baltimore & O.R. Co., 652 F.2d 1012 (1981). Under this standard, a majority-group plaintiff must demonstrate that "additional background circumstances support the suspicion that the defendant is that unusual employer who discriminates against the majority." As explained by the Sixth Circuit Court of Appeals in Ames v. Ohio Department of Youth Services, 87 F.4th 822 (2023), which is the case now before the Supreme Court: "[p]laintiffs typically make that showing with evidence that a member of the relevant minority group ... made the employment decision at issue, or with statistical evidence showing a pattern of discrimination by the employer against members of the majority group."
The requirement to provide additional "background circumstances" that give rise to a suspicion of discrimination in these reverse discrimination cases applies in lieu of the first prong of the prima facie case. Generally, the prima facie prong requires a plaintiff to prove that the plaintiff is a member of a protected class. It does not require the presentation of any of these other additional "background circumstances."
A minority of federal Circuit Courts impose this heightened evidentiary standard. Other circuits do not require this added proof. Those federal courts apply the same burden of proof for all plaintiffs bringing discrimination claims under Title VII.
The Case
In Ames v. Ohio Department of Youth Services ("ODYS") (No. 23-1039), the Supreme Court will determine whether Marlean Ames, a former employee of the ODYS, must show additional "background circumstances" to maintain her claim against ODYS for discrimination based on sexual orientation. Ms. Ames is a heterosexual woman who alleges that ODYS discriminated against her with respect to certain employment decisions due to her sexual orientation and her sex.
The lower trial court ruled in favor of the employer on summary judgment, applying the "background circumstances" standard for the plaintiff's sexual orientation claim. On appeal, the Sixth Circuit Court of Appeals affirmed and dismissed that case because the plaintiff did not sufficiently provide additional "background circumstances" information to establish a case for discrimination. The U.S. Supreme Court granted certiorari on Ms. Ames' sexual orientation claim to determine "[w]hether, in addition to pleading the other elements of Title VII, a majority-group plaintiff must show "background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority."
Ms. Ames' contention is that the "background circumstances" requirement imposes an arbitrary and unequal burden on majority groups that is counter to the text of Title VII and creates a different and more difficult burden. Countering that position, ODYS contends that this added requirement does not create a heavier burden and, in any event, this plaintiff did not show a prima facie case even if the "background circumstances" rule did not apply.
Oral Argument
At oral argument on February 26. 2025, comments and questions from some of the Supreme Court Justices suggest that the Supreme Court may reject the application of a "background circumstances" requirement. An inquiry of the Ohio Solicitor General resulted in the concession that the application of the background circumstances standard in this case was wrong; the Solicitor General also agreed that it was wrong and that "Ohio agrees that it's wrong to treat people differently." A transcript to the oral argument may be found at the following link: https://www.supremecourt.gov/oral_arguments/argument_transcripts/2024/23-1039_1an2.pdf.
What All This Means
It is anticipated that the Supreme Court will issue a decision on this case by the summer of 2025. If the Supreme Court rejects the "background circumstances" requirement, all plaintiffs (majority-group and minority-group) will be expected to meet the same standard of proof to prevail in a claim of discrimination in those cases based on circumstantial evidence. This may result in an increase of cases brought by majority-group plaintiffs. With recent Executive Orders, there may also be an increase of cases where plaintiffs oppose diversity, equity and inclusion ("DEI") programs in the public and private sectors. We will need to wait and see what the Supreme Court decides in this case.
Published: New Hampshire Bar News
April 16, 2025
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