The U.S. Supreme Court recently granted cert in a hotly contested case addressing the standards of proof applicable to reverse discrimination claims under Title VII. The case comes on the heels of the court’s decision last term in Muldrow v. City of St. Louis, Mo., where it lowered the standard to prove that an employee suffered an adverse employment action (now, employees need only show that they suffered “some harm respecting an identifiable term or condition of employment”). In the next term, in Ames v. Ohio Department of Youth Services, SCOTUS will turn its attention to so-called “reverse” discrimination and whether members of a majority group will be required to meet a heightened pleading standard to prove their claims.

More specifically, in Ames, a heterosexual female plaintiff sued her employer claiming that it demoted her from her current position and refused to promote her into a different position in each case because of her sexual orientation. The district court applied a heightened pleading standard: that the plaintiff, because she was in a majority group, must show “background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.” It dismissed the case finding that the plaintiff did not offer sufficient evidence of these “background circumstances.” 

The Sixth Circuit Court of Appeals, applying the same standard, affirmed summary judgment. While the three-judge panel noted that the plaintiff would have been able to satisfy her burden to make an initial case of “traditional” discrimination, her inability to point to background circumstances, either by showing that “a member of the relevant minority group” made the adverse employment decision or “by providing statistical evidence demonstrating a pattern of discrimination by the employer against the members of the majority group,” proved fatal to her claim. In a concurring opinion, the Court’s Chief Judge agreed with the majority – that the background circumstances rule was applied correctly – but he expressed disagreement that such a standard should be applied and expressed hope that the Supreme Court would soon take up the issue. 

Now it has, and the decision to take up the issue is consistent with the Supreme Court’s increased scrutiny of the role that race, gender, and other protected categories should play in society, as seen in their decisions in Muldrow and before that with respect to the Students for Fair Admissions. If the Supreme Court invalidates the background circumstances rule, non-traditional plaintiffs may have an easier path to proving reverse discrimination under Title VII. We will continue to monitor this case and will report back when SCOTUS issues its decision.