/>iThe federal government is urging the U.S. Supreme Court to find that anti-discrimination protections apply equally to all workers and there should be no heightened pleading standard for so-called “reverse discrimination” cases under Title VII.
The Supreme Court in Ames v. Ohio Department of Youth Service recently agreed to clarify the pleading standard for “majority” group plaintiffs – including male, white, and heterosexual workers – who allege discrimination under Title VII of the Civil Rights Act. Courts in five federal circuit courts of appeal currently apply a heightened pleading standard for these “reverse discrimination” cases. Under this heightened standard, majority group plaintiffs must establish “background circumstances” tending to show that their employer discriminates against members of majority groups. The Sixth Circuit in Ames applied this heightened standard and affirmed the dismissal of a heterosexual employee’s claim of bias in favor of LGBTQ workers.
The Supreme Court granted certiorari to clarify whether this heightened standard should apply in “reverse discrimination” cases. In an amicus brief filed with the Supreme Court on December 16, the Equal Employment Opportunity Commission (“EEOC”) and the Department of Justice (“DOJ”) urged the Court to reject this approach, arguing that a heightened pleading standard frustrates Title VII’s purpose and contradicts court precedent. Government lawyers are urging the Court to invalidate the “background circumstances” test and have the Sixth Circuit in Ames apply the same standard to all workers under Title VII.
Ames v. Ohio Department of Youth Services
In the case at issue, Marlean Ames, a heterosexual worker, sued her employer, the Ohio Department of Youth Services, for reverse discrimination. She alleged that the Department denied her application for a promotion in favor of a gay woman with less experience who had not applied for the job, and that she was then demoted and replaced by a gay man who had less tenure with the Department.
The district court, however, granted summary judgment in favor of Ames’ employer. The Sixth Circuit upheld decision, explaining that a majority group plaintiff such as Ames has a separate burden in addition to the ordinary prima facie discrimination showing under McDonnell Douglas v. Green. Majority group plaintiffs must also show “background circumstances that support the suspicion that the defendant is that unusual employer who discriminates against the majority.” Courts in the Seventh, Eighth, Tenth and D.C. circuits also apply this heightened pleading standard for reverse discrimination cases.
In affirming the summary judgment in favor of Ames’ employer, the Sixth Circuit explained that plaintiffs can typically meet the “background circumstances” test with statistical evidence showing a pattern of discrimination against the majority group by the employer or by showing that a minority group member made the employment decision at issue. Ames, however, had not made either showing.
EEOC and DOJ Urge SCOTUS to Reject Heightened Pleading Standard
Lawyers for the EEOC and the DOJ are now urging the Supreme Court to reject the “background circumstances” test and, instead, require that courts in all circuits apply the same standard applicable in other discrimination cases.
Courts that have adopted the heightened pleading standard for reverse discrimination cases generally assume that the balance-shifting framework in McDonnell Douglas was predicated on the plaintiff’s membership in a minority group. But the Court’s reasoning in McDonnell Douglas and subsequent cases does not support this interpretation, according to the EEOC and the DOJ.
The EEOC and DOJ argue that a heighted pleading standard for reverse discrimination cases frustrates Title VII by ignoring the ultimate issue in a disparate-treatment claim – the employer’s treatment of the individual plaintiff, not the treatment of the broader group to which the plaintiff belongs. They argue that even if an employer ordinarily treats members of the plaintiff’s class well, that is no defense to discrimination against a particular plaintiff. They cite the landmark equal-treatment decision in Bostock v. Clayton County, Ga., where the Court held that Title VII’s protections extend to sexual orientation and transgender status.
Takeaways for Employers
The Supreme Court has set oral argument for February 26. If the Court ultimately removes the “background circumstances” hurdle for majority plaintiffs, the path will be much less difficult for reverse discrimination cases to proceed in the five circuits currently applying the heightened pleading standard.
However, employers in all circuits should always take steps to ensure that employment decisions are based on legitimate (nondiscriminatory) business reasons and those decisions are documented and can be supported, if challenged. Ames only underscores the importance of this practice.
