The U.S. Supreme Court recently realigned the burden of proof for all employees under Title VII in Ames v. Ohio Department of Youth Services. Previously, several appellate courts required majority group members (e.g., white, heterosexual, cisgender individuals) to establish "background circumstances" to support their claims.
In short, it was significantly more challenging for majority group employees to establish discrimination claims when filing charges and lawsuits against employers.
By way of example, and as discussed earlier, majority group employees often had to show that a member of the relevant minority group made the employment decision — or they had to show a "pattern of discrimination by the employer against members" of the group.
In sum, it was a high bar to achieve. Most charges or lawsuits filed by majority group members failed as a result. But that may change after Ames.
As noted earlier this year, the number of EEOC charges continues to rise. With the "new" burden of proof, majority group members may feel empowered to file charges and lawsuits. Ames could accelerate that trend, potentially leading to a sharp increase in filings over the next year or two.
As a result, employers should ensure that:
- Anti-discrimination policies are current and clearly communicated,
- Investigations into discrimination claims are prompt and thorough, and
- Policies are implemented consistently, regardless of an employee's background.
The U.S. Court of Appeals for the 6th Circuit's "background circumstances" rule—which requires members of a majority group to satisfy a heightened evidentiary standard to prevail on a Title VII discrimination claim—cannot be squared with either the text of Title VII or the Supreme Court's precedents.
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