SCOTUS hears reverse discrimination case

The parties in Ames v Ohio Department of Youth Services seemed to be in “radical agreement” that plaintiffs of a majority group should not assume higher evidentiary burdens when proving discrimination under Title VII of the Civil Rights Act 1964.

Ames, a heterosexual woman, filed a sex-based discrimination charge with the US Equal Employment Opportunity Commission (EEOC) after being rejected from a higher position and demoted from her prior position at the Ohio Department of Youth Services. The positions were subsequently offered to a homosexual woman and a homosexual man, respectively.

After the US District Court for the Southern District of Ohio granted the Department of Youth Services summary judgment, Ames appealed to the US Court of Appeals for the Sixth Circuit. The Sixth Circuit held that Ames failed to “show background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.” The appeals court also found that the Department of Youth Services provided non-discriminatory reasons for their decisions and affirmed the lower court’s summary judgment.

Ames’ attorney, Xiao Wang, told the US Supreme Court on Wednesday that the background circumstances rule is inconsistent with Title VII not because “Title VII aims to eradicate all discrimination in the workplace,” but rather because “the background circumstances rule . . . instructs courts to practice [discrimination] by sorting individuals into majority and minority groups” based on protected characteristics.

Wang was also critical of the application of a “categorical evidentiary presumption . . . against the non-moving party based solely on their being in a majority group.”

The background circumstances rule comes from the 1981 US Court of Appeals for the District of Columbia decision in Parker v Baltimore & Ohio Railroad. The rule has only been adopted by four circuit courts of appeal.

Speaking for the US government as a friend of the court supporting vacatur of the Sixth Circuit’s decision, assistant to the solicitor general Ashley Robertson said the appeals court “required more evidence to make out a prima facie case than [the US Supreme Court] has held is necessary.” She noted the EEOC has always rejected the background circumstances rule and applies the same prima facie case for all plaintiffs.

Jeffrey Jennings, counsel of record for the Pacific Legal Foundation, which submitted an amicus brief supporting Ames, said the background circumstances rule reinforces an antiquated belief that “the only way we can achieve equality is if we take from the majority group.”

“If [the background circumstances rule] is discarded, which we hope for, it would make it easier for reverse discrimination plaintiffs to bring cases . . . and use Title VII like it’s meant to be used,” Jennings said.

Elliot Gaiser, solicitor general of Ohio, stunned the court when he said “Ohio agrees it is wrong to hold some litigants to a higher standard because of their protected characteristics.” He said, however, that this did not happen to Ames.

Throughout questioning, Gaiser maintained that Ames failed to prove that the relevant employment decisions made by the Department of Youth Services were based on her sexual orientation. Further, he said that Ames’ superiors were unaware of her sexual orientation when making these decisions and that, therefore, “it’s not possible to infer that they were motivated by that protected trait.”

Wang argued that employers “have to provide some sort of legitimate non-discriminatory reasoning to answer or rebut the prima facie case,” which the Department of Youth Services failed to do.

After Ames was passed over for the promotion, the Ohio Department of Youth Services held the position open for eight months. The position was eventually filled by an individual who neither applied for the job nor held the same credentials as Ames.

“If [a position is] held open, I think that means that the prima facie case serves as an explanation-forcing mechanism, [which is] meant to bring the employer to the table,” Wang said. “It’s not supposed to be a heavy burden on the employer.”

A point of contention during the hearing was the Sixth Circuit’s application of the “McDonnell Douglas Framework,” derived from a 1973 US Supreme Court decision, McDonnell Douglas v Green. The framework required Ames to establish that:

• she was a member of a protected class;
• she suffered from adverse employment decisions;
• she was qualified for the position to which she applied; and
• her employer showed preference toward a similarly qualified member from a different protected class.

The Sixth Circuit found that Ames had a heightened evidentiary burden to prove her employer discriminates against the majority because of her heterosexual status. The court ruled that Ames failed to meet this burden.

Alexsis Johnson, assistant counsel for the NAACP Legal Defense and Educational Fund, said the Sixth Circuit did not properly apply McDonnell Douglas. However, she said this goes beyond the question presented to the US Supreme Court.

“Because of the petitioner’s framing, there’s almost an invitation to the court to revisit McDonnell Douglas, to revisit some of the fundamental frameworks and ways we think about Title VII to combat discrimination,” Johnson said. “The concern is that the court does not go beyond the very specific, narrow ruling it needs to give in this case, and not rewrite Title VII jurisprudence.”

Similarly, Wang said all parties in the case acknowledged the importance of McDonnell Douglas. Because of this, he argued that Wednesday’s hearing would not be the “best vehicle to re-examine” the framework.

“Whether you have McDonnell Douglas or not, there’s still sort of this underlying question of, ‘should you apply some sort of categorical evidentiary assumption against an individual based on being in a majority group?’” Wang said. “Because we take [McDonnell Douglas] as a given, we’re trying to focus just on this narrow question of whether this add-on to McDonnell Douglas is appropriate.”

US Supreme Court Justice Elena Kagan noted the McDonnell Douglas argument as part of a “range of things that have nothing to do with” the question presented to the court. Justice Neil Gorsuch suggested the court simply reject the background circumstances rule and send the case back down to the Sixth Circuit to consider other employment discrimination questions.

Ames v Ohio Department of Youth Services has added to larger conversations about the role of diversity, equity, and inclusion (DEI) in the workplace. In its amicus brief, the Pacific Legal Foundation asserted that “[t]he rise of DEI ideology and racial preferences means that discrimination is all too common today.”

Jennings said the foundation took an interest in the case due to a concern about the “growing trend of DEI.”

“This case is important because it’s reinforcing this idea that reverse discrimination is not a threat. In this specific case, [Ames] was required to have extra evidentiary burdens simply because she’s a reverse discrimination plaintiff,” Jennings said. “That amounts to discriminating against her based on sexual orientation.”

The NAACP Legal Defense and Educational Fund hopes for the US Supreme Court to affirm the Sixth Circuit’s decision in light of recent “attacks on DEI,” Johnson said.

“We want to make sure the [US Supreme] Court does not adopt a rule that does not prevent courts from considering the broad context of how discrimination happens in the workplace,” Johnson said. “Not considering background circumstances in the full context of discrimination at all would be really concerning because the historical background really informs how a lot of people experience discrimination every day.”