Attorneys for both the petitioner and respondent at Wednesday’s oral argument session in Ames v. Ohio Department of Youth Services largely agreed that the U.S. Supreme Court should clarify that majority-group plaintiffs alleging job discrimination need not prove the existence of certain background circumstances in order to support their claims.
A majority of the court’s justices appeared to agree, likely setting up a ruling in favor of the petitioner, a former employee of Ohio’s Department of Youth Services.
The employee, a heterosexual woman, alleged discrimination on the basis of her sex and sexual orientation. The 6th U.S. Circuit Court of Appeals held that while the plaintiff had successfully stated a prima facie case of sex discrimination under Title VII of the 1964 Civil Rights Act, neither claim could survive summary judgment.
Specifically, the plaintiff could not proceed with her sexual orientation-discrimination claim and had not established a prima facie for this claim because she had not shown “background circumstances to support the suspicion” that her employer is an “unusual employer who discriminates against the majority.”
Xiao Wang, counsel for the petitioner, argued that the background circumstances requirement employed by the 6th Circuit and other circuits “instructs courts to practice” discrimination by sorting plaintiffs into minority and majority groups based on their protected characteristics in a manner inconsistent with Title VII.
“At the heart of this case, at bottom, all [the petitioner] is asking for is equal justice under law,” Wang said. “Not more justice, but certainly not less and certainly not less because of the color of her skin or because of her sex or because of her religion.”
Perhaps the most striking aspect of the session was that both Wang and his opposing counsel agreed that the high court should strike down the background circumstances requirement.
T. Elliot Gaiser, Solicitor General of Ohio and counsel for the respondent, said his state “agrees it is wrong to hold some litigants to a higher standard because of their protected characteristics.” He added that, at minimum, the court should decide that the framework by which discrimination plaintiffs must plead their claims — established in the 1973 Supreme Court decision McDonnell Douglas Corp. v. Green — applies equally to all such plaintiffs.
“We’re in radical agreement today on that, it seems to me,” Justice Neil Gorsuch said to laughter in the courtroom.
‘Reverse discrimination’ claims take center stage
Employment law observers saw Ames as a test case for so-called “reverse discrimination” claims, a category of lawsuits filed by plaintiffs who, because of their protected characteristics, would not normally be subjected to discrimination.
The high court’s McDonnell Douglas framework articulates a three-step process by which a plaintiff may demonstrate that a party treated similarly situated individuals differently on the basis of a protected characteristic.
According to U.S. Department of Justice guidance, the first step is that the plaintiff must establish a prima facie case of discrimination by showing that:
- The employee belongs to a protected class.
- The employee was qualified for a given job.
- The employee was subjected to an adverse employment action.
- The employer gave better treatment to a similarly-situated person outside the plaintiff’s protected class.
Under the precedent of the 6th Circuit and other circuits, however, majority-group plaintiffs must meet the background circumstances bar in order to establish a prima facie case. The requirement can be traced back to the 1981 decision of the D.C. Circuit in Parker v. Baltimore & Ohio Railroad Company.
‘That’s orthogonal to the question we took’
While Gaiser said he agreed that all plaintiffs should be treated equally under McDonnell Douglas, he maintained that the 6th Circuit’s judgment was correct because that court correctly held that a plaintiff must make a prima facie case before the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the action it took.
“Our argument is that this Court reviews judgments, and the judgment was correct,” Gaiser added.
But several justices took issue with Gaiser’s argument that the 6th Circuit’s decision should stand. Justice Elena Kagan, for example, asked why the high court couldn’t simply state that majority- and minority-group plaintiffs should be treated the same under McDonnell Douglas without opining on other aspects of that framework.
Gaiser responded by stating that “we don’t agree about what that prima facie step actually looks like when we do that.”
“Yes, I know,” Kagan replied. “But that’s orthogonal to the question we took.”
Similarly, Gorsuch asked Gaiser why the Supreme Court should have to decide whether the Ames petitioner properly met McDonnell Douglas’ four prongs instead of deferring to a lower court.
“You say that’s not met because the relevant decisionmakers didn’t know the plaintiff’s sexual orientation,” Gorsuch said. “Interesting argument. Not presented here. Let a lower court pass on it first.”
Employer takeaways
In an interview with HR Dive, Eric Tate, co-chair of law firm Morrison & Foerster’s global employment and labor practice, said he would be surprised if the high court did not strike down the background circumstances requirement.
“I think it’s important to realize that this is the minority rule amongst the circuits,” Tate added. “A majority of circuits that have addressed this requirement have not applied it.”
Last year, the Supreme Court struck down a similar requirement that certain federal courts placed upon employees alleging discrimination under Title VII in Muldrow v. City of St. Louis. There, the high court said that employees challenging discrimination need not show that they suffered “significant” harm as a result of an adverse employment decision, only evidence of some harm.
A decision in Ames will still be of import despite the fact that most plaintiffs in more heavily populated federal circuits might not have been faced with such a requirement, Tate said, because of ongoing litigation against — and federal scrutiny of — employers’ diversity, equity and inclusion programs.
“This very well could usher in a whole new wave of reverse discrimination cases,” Tate said, adding that the Supreme Court’s forthcoming decision is likely to draw public attention to such claims. “It is a good reminder to all employers of making sure you’re taking care of the basics and having clear requirements for all your jobs, clear documentation of performance issues and clear documentation of why decisions are being made. Because there may come a time when you have a challenge to it.”
