Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on race, color, religion, sex, and national origin. To establish a prima facie case of discrimination under Title VII of the Civil Rights Act, a plaintiff generally must prove (1) that they are a member of a protected class, (2) were qualified for the job in question, (3) experienced adverse employment action, and (4) similarly situated individuals outside his protected class were treated more favorably.
The “Background Circumstances” Requirement
In Title VII cases alleging reverse discrimination (where member of a majority group alleges discrimination), some jurisdictions have adopted a rule requiring plaintiffs to demonstrate “background circumstances” in addition to the other elements required to establish a prima facie case of discrimination. These jurisdictions require such plaintiffs to produce evidence showing “background circumstances” to support the suspicion that the employer is the unusual employer who discriminates against the majority.
Appellate courts are split concerning the application of the background circumstances rule. Historically, the Sixth, Seventh, Eighth, Tenth and D.C. circuits apply the rule, while the other circuits do not.
Ames v. Ohio Department of Youth Services
In Ames v. Ohio Department of Youth Services, Marlean Ames, a heterosexual woman, was passed over for a promotion in favor of a lesbian candidate for the position of Bureau Chief of Quality by her employer, the Ohio Department of Youth Services. The department subsequently demoted Ames and hired a gay man to fill the role of program administrator. Based on these actions, Ames filed suit against her employer under Title VII, alleging it discriminated against her based on her sexual orientation as a heterosexual woman.
In a unanimous decision authored by Justice Ketanji Brown Jackson, the Supreme Court rejected the Sixth Circuit’s “background circumstances” rule as being incompatible with the text of Title VII and longstanding precedent.
“By establishing the same protections for every “individual”—without regard to that individual’s membership in a minority or majority group—Congress left no room for courts to impose special requirement on majority-group plaintiffs alone.” Jackson wrote.
What Employers Need to Know
The decision has significant implications in the 6th, 7th, 8th, 10th, and D.C. Circuits. As part of the 8th Circuit, this new standard will apply to employers with operations in Minnesota. Employers should expect to see increased litigation risks with “reverse discrimination” claims given the bar for raising such claims has been lowered. Employers should continue to take steps like reviewing or updating employment policies as needed to reduce risk.
Bottom Line
Employers should be cognizant that they have a legal obligation to comply with Title VII to ensure employment decisions are based on legitimate, non-discriminatory reasons, regardless of whether such decisions relate to individuals in minority or majority groups.
Given the context of this evolving area of law, employers should feel free to reach out to their trusted Felhaber attorneys for guidance.
*A special thanks to Ikran J. Noor for her help with this post.