‘Ames’: No more ‘groupthink’ in reverse bias cases

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In an opinion authored by Justice Ketanji Brown Jackson, the U.S. Supreme Court in June issued a unanimous decision in Ames v. Ohio Department of Youth Services, applying the plain language of Title VII of the Civil Rights Act of 1964 in rejecting the justification for a heightened evidentiary burden in so-called “reverse discrimination” claims.

Marlean Ames, a heterosexual woman, alleged discrimination based on her sexual orientation. Ames claimed that she was passed over for a promotion in favor of a lesbian woman. The employer subsequently demoted Ames and hired a gay man to fill her role.

The 6th U.S. Circuit Court of Appeals affirmed summary judgment in favor of the employer, finding that Ames had failed to meet her prima facie burden because she had not shown “background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.” It noted that the plaintiff was required to make that showing “in addition to the usual ones for establishing a prima facie case” of discrimination.

Over the last 50 years, in evaluating the burden of proof in Title VII disparate treatment discrimination claims based on circumstantial evidence, courts have utilized the burden-shifting paradigm set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

At the first step of the three-step McDonnell Douglas inquiry, the plaintiff bears the “initial burden” of “establishing a prima facie case” by producing enough evidence to support an inference of discriminatory motive. The “burden of establishing a prima facie case of disparate treatment is not onerous.” See Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).

Under McDonnell Douglas, if a plaintiff establishes a prima facie case, the burden then shifts to the employer to articulate a legitimate, nondiscriminatory reason for the employment decision at issue.

Finally, if the employer articulates such a justification, the plaintiff must then have a fair opportunity to show that the stated justification was in fact pretext.

The contours of the initial step of the evidentiary burden were at issue in Ames, specifically the 6th Circuit’s added requirement of a showing of “background circumstances” to establish a prima facie case.

So, when and why was the “background circumstances” test affixed to the not-so-onerous first prong of the McDonnell Douglas test? The origin can be traced back to Parker v. Baltimore & Ohio R. Co., 652 F.2d 1012 (D.C. Cir. 1981).

The Court of Appeals in Parker was faced with a claim by a white male that he was denied a promotion in violation of Title VII based on his gender and race. The court said that “[m]embership in a socially disfavored group was the assumption on which the entire McDonnell Douglas analysis was predicated. … Whites are also a protected group under Title VII, but it defies common sense to suggest that the promotion of a black employee justifies an inference of prejudice against white co-workers in our present society.”

Based on that construct, the court in Parker noted the need for a showing of “background circumstances” to support the suspicion that the defendant is that “unusual employer who discriminates against the majority.”

Over the ensuing decades, many federal courts in deciding reverse discrimination cases added the “background circumstances” requirement to the first prong of the McDonnell Douglas framework. Thus, in establishing a prima facie case of discrimination, a plaintiff belonging to a majority group had the added burden of demonstrating “background circumstances,” such as whether a member of the relevant minority group made the employment decision or statistical evidence showing a pattern of discrimination against the majority group.

By the time the Ames case reached the Supreme Court, five circuit courts — the D.C. Circuit along with the 6th, 7th, 8th and 10th circuits — held or suggested that majority group plaintiffs had to satisfy this heightened burden of proof in disparate treatment cases under Title VII.

In rejecting the “background circumstances” rule, the Supreme Court’s analysis centered on the plain language of Title VII. The court wrote that “[a]s a textual matter, Title VII’s disparate-treatment provision draws no distinctions between majority-group plaintiffs and minority-group plaintiffs.”

Rejecting the assumption in Parker that membership in a “socially disfavored group” was the underpinning of McDonnell Douglas, the Ames opinion emphasized that Title VII does not govern discrimination pertaining to groups but discrimination against individuals.

According to Ames, Title VII “makes it unlawful ‘to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.’ … The ‘law’s focus on individuals rather than groups [is] anything but academic.’” (emphases in original)

The “anything but academic” reference is drawn from Bostock v. Clayton County, 590 U.S. 644 (2020), in which the court extended Title VII’s protections to discrimination based on sexual orientation and gender identity, noting that Title VII “works to protect individuals of both sexes from discrimination, and does so equally.”

By focusing on the references to “individual” protections in the text of Title VII and disregarding the emphasis on groups recited in many earlier decisions, the court in Ames dispelled the assumption supporting the background circumstances test.

As stated in Ames, 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 requirements on majority-group plaintiffs alone.”

Ames establishes the principle that the standard for proving disparate treatment under Title VII is focused on the protection of individuals from discriminatory treatment, and that the statute, by its express terms, does not vary based on the plaintiff’s membership in a minority group or majority group.

While the court in Ames determined a narrow question of law, the decision has profound implications. It may usher in a new wave of litigation as it lowers the threshold for Title VII plaintiffs. Employers should consider a careful evaluation of their personnel policies and practices in light of this changing legal environment.

Terence P. McCourt is co-managing shareholder of the Boston office of Greenberg Traurig, where he chairs the labor and employment practice.