Real World Impact: The United States Supreme Court issued a unanimous decision in a sex discrimination case as it sided with a straight woman on the standard to be used in pleading disparate treatment on the basis of her sexual orientation. The Court granted certiorari from the U.S. Court of Appeals for the Sixth Circuit.
Background on Ames v. Ohio Department of Youth Services
This case arises from a claim that Ames was not promoted – and, later, was demoted – as a result of her sexuality. In 2004, Ames was hired as an executive secretary at the Ohio Department of Youth Services. In 2014, she was appointed program administrator. In 2018, Ginine Trim, a gay woman, came into the Department as Ames’s supervisor. Under Trim’s leadership, Ames received positive performance evaluations. However, when she applied for a promotion in 2019, she was denied. Instead, a gay woman with less experience and no college degree was chosen over Ames. Not long after being denied a promotion, Ames was demoted and received a significant pay cut – she was making just over half of what she previously made as program administrator. A gay man with less seniority was chosen to replace Ames in her previous position. Thus, Ames brought suit claiming discrimination on the basis of sex.
The U.S Supreme Court’s 2020 decision in Bostock v. Clayton County, Georgia held that discrimination based on sexual orientation falls under sex discrimination for purposes of Title VII claims, thereby providing Ames with a cause of action in Ohio federal court. The Sixth Circuit ruled against Ms. Ames, claiming that she was required to show “background circumstances” to support claims of reverse discrimination. Typically, these “background circumstances” are shown either with evidence that a member of a minority group made the discriminatory decision or with evidence that demonstrates a pattern of discrimination against members of a majority group. Here, Ames could not present this evidence because the named decisionmakers responsible for both withholding the promotion and handing down the demotion were straight; thus, the court reasoned that Ames could not show a pattern of reverse discrimination. Attorney Xiao Wang, representing Ames, asked the Justices to reverse the Sixth Circuit’s decision.
The Issues and Precedent Before the Court
The issue before the Court, as defined by Justice Elena Kagan, “is whether a majority-group plaintiff has to show something more than a minority-group plaintiff – here, whether a straight person has to show more than a gay person.”
“Reverse” discrimination refers to situations in which an employee or applicant who is a member of the “majority” race or sex sues for discrimination. Many courts have followed the test set forth in Parker v. Baltimore & Ohio R. Co., 652 F.2d 1012 (D.C. Cir. 1981), for proving reverse discrimination. In Parker, the court modified the first prong of a plaintiff’s prima facie case, i.e., that the person must be a member of a protected class, when a nonminority plaintiff seeks to establish a prima facie case of discrimination. The court explained that because the disparate treatment of a nonminority (i.e., straight) does not give rise to the same inference of prejudice as the disparate treatment of a traditionally protected class (i.e., gay), nonminority plaintiffs must provide some evidence, apart from their sexual orientation, that supports the suspicion that the employer “is that unusual employer who discriminates against the majority.” Id. Several other courts have followed this reasoning. See, e.g., Nelson v. Ball Corp., 656 F. App’x 131, 134-35 (6th Cir. 2016) (“We have modified the McDonnell Douglas prima facie test to make it applicable when “a member of the majority is claiming discrimination on the basis of race,” noting the plaintiff must demonstrate background circumstances that support the position that the defendant “is that unusual employer who discriminates against the majority).
Some courts, however, have rejected this analysis because it places a greater burden on nonminority plaintiffs trying to prove discrimination. See, e.g., Bass v. Board of County Comm’rs, 256 F.3d 1095 (11th Cir. 2001) (“[d]iscrimination is discrimination no matter what the race, color, religion, sex, or national origin of the victim; … [o]ur Constitution does not distinguish between races and neither do we.”), overruled in part on other grounds, Crawford v. Carroll, 529 F.3d 961 (11th Cir. 2008).
The Implications of the Court’s Decision
Attorney Wang for Ames argued that necessitating a showing of “background circumstances” for members of a majority group in fact perpetuates discrimination rather than eradicates it. He sought a ruling that upholds the ideals of federal employment discrimination laws to eradicate discrimination in the workplace. Ohio Solicitor General T. Elliot Gaiser argued that if Ames prevails, federal employment laws will “presume liability for employers.” The Justices focused on the imposition of an additional requirement – indeed, burden – on Ames to prove her case solely because she is straight and part of a majority group.
Writing for the court, Justice Ketanji Brown Jackson held that the threshold for proving workplace discrimination under Title VII “does not vary based on whether or not the plaintiff is a member of a majority group.” A decision for Ames changes how reverse discrimination cases are argued but does not necessarily create a presumption against or of liability for employers. Pursuant to the McDonnell Douglas standard, employers remain responsible for showing a legitimate, nondiscriminatory reason for any adverse action. Employees remain responsible proving a prima facie case of discrimination, but members of a majority group would be held to the same burden of proof as members of a minority group. This is because, as the concurrence states, the background circumstances rule was “judge-made” and was unconstitutional given how it contradicts Title VII. All discrimination cases will now be argued under a uniform standard, and no party would be required to meet a heightened burden now that the background circumstances requirement has been overturned.