Earlier this month, the U.S. Supreme Court issued a decision in Ames v. Ohio Department of Youth Services vitiating the so-called "background circumstances" test required by half of federal circuit courts.1 The background circumstances test required majority group plaintiffs pleading discrimination under Title VII of the Civil Rights Act to meet a heightened pleading standard by demonstrating an employer is the rare entity that would discriminate against a majority group. The Court's decision, by holding the same minimal pleading standard applies for majority and minority group plaintiffs alike, not only resolves a circuit split, but has major implications for employers' use of Diversity, Equity and Inclusion (DEI) initiatives.
Background
Title VII of the Civil Rights Act of 1964 prohibits employers2 from discriminating against employees on the basis of several protected categories, including race, color, age, religion, sex or national origin.3 In order to demonstrate a prima facie case of disparate treatment, a moving party need only demonstrate that he or she "applied for an available position for which she was qualified, but was rejected under circumstances which give rise to an inference of unlawful discrimination."4
Disparate treatment cases are those in which the plaintiff claims an employer is deliberately discriminating based on the moving party's membership status in a protected category, such as their race or sex. This contrasts with disparate impact claims, in which an employer implements a policy that is facially neutral but is nevertheless claimed by the plaintiff to disproportionately disadvantage a protected group.
The McDonnell Douglas Framework
In McDonnell Douglas Corp. v. Green5 the Supreme Court laid out a three-step burden shifting framework for evaluating Title VII claims.6 The purpose of the McDonnell Douglas framework was to "bring the litigants and the court expeditiously and fairly to the ultimate question" in a disparate-treatment case-namely, whether "the defendant intentionally discriminated against the plaintiff."7 Understanding civil litigation process is important for both employers and employees navigating these complex legal frameworks.
For most plaintiffs, the first step of the McDonnell-Douglas framework is not onerous, requiring the plaintiff merely to present circumstantial evidence giving rise to an inference of unlawful discrimination. However, nearly half of federal circuit courts, including the Sixth Circuit, require plaintiffs who are members of majority groups to also establish "background circumstances" supporting "the suspicion that the defendant is that unusual employer who discriminates against the majority."8
The Supreme Court's decision arose from a Title VII suit filed by Marlean Ames. Ames alleged she was discriminated against as a heterosexual woman, first by being denied a management position in favor of a lesbian candidate, then by being demoted from her position as program administrator in favor of a gay man. The District Court granted summary judgment to the agency, concluding that Ames had failed to demonstrate the agency was the rare employer who had discriminated against members of a majority group under the background circumstances test. Business litigation and dispute resolution strategies are critical in employment discrimination cases like this. The Sixth Circuit affirmed.
The Court's Decision
The Court reversed the Sixth Circuit and vitiated heightened pleading standards for majority groups. Justice Jackson, writing for a unanimous Court, held that "[a]s a textual matter, Title VII's disparate treatment provision draws no distinctions between majority group plaintiffs and minority group plaintiffs."
Textualism was also employed in holding the "background circumstances" test contrary to Title VII's antidiscrimination provision, which focused on individuals, rather, than groups9, a focus the Court had previously held to be "anything but academic."10 As such, "Congress left no room for courts to impose special requirements on majority-group plaintiffs alone." The background circumstances rule thus flouts the basic principle repeatedly articulated by precedent "that the standard for disparate treatment under Title VII does not vary based on whether or not the plaintiff is a member of a majority group."11
By disregarding the Court's admonition that Title VII prohibits discrimination against individuals and uniformly subjecting certain plaintiffs to a rigid highly specific evidentiary standard based on their membership in a certain group, the background circumstances test failed as a matter of law. In a separate concurring opinion, Justice Thomas inveighed against judicial made doctrines, such as the background circumstances test, for not only flouting Title VII's textual prohibitions but for failing to offer any guidance on what precisely constitutes a majority group.
Implications for Employers
Ames, by holding majority group plaintiffs need only plead the same minimal facts as minority group plaintiffs to demonstrate a prima facie case of discrimination, not only unified pleading standards but rendered it far easier for plaintiffs claiming reverse discrimination to commence suit and survive summary judgment. Employment litigation and fiduciary duty considerations are increasingly important for employers to understand in this evolving legal landscape.
As a result, plaintiffs claiming discrimination based on their membership in a majority group not traditionally or historically perceived as subjugated, such as their status as white males, are subject to the same liberal pleading standards as those claiming discrimination based on their status in a more traditional protected category.
Therefore, employers should be most careful in how they employ recruiting tools and measures to increase the diversity and inclusion of their workforces. Employers should be cautious not to tailor hiring, recruiting, or promotion practices-indeed any practices governing the essential terms of employment-for any one race or gender over another. Diversity and inclusion initiatives need to be race and gender neutral, in substance as well as in form. If workplace advancement and recruiting initiatives are perceived to favor one race or gender over another, employers could be subject to costs in the form of lawsuits and Title VII damages.
For businesses needing assistance with their regulatory and legal obligations, or to discuss how these potential changes might affect your business operations, call Scarinci Hollenbeck LLC today. Our experienced attorneys can help navigate the evolving regulatory landscape.
Footnotes
1. In addition to the Sixth Circuit, the Eighth, Seventh, D.C. and Tenth Circuits have held or suggested majority group plaintiffs must meet a heightened pleading standard in order to make out a prima facie case of disparate treatment under Title VII.
2. Defined by Title VII of the Civil Rights Act as an entity with 15 or more employees
3. 42 U.S.C. § 2000e-2a(1).
4. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
5. 411 U.S. 792, 802 (1973).
6. The so-called McDonnell Douglas framework first requires the plaintiff to make a prima facie case by producing enough evidence to support an inference of discriminatory motive on behalf of the employer. If the plaintiff cleared that threshold, the burden shifted to the employer to articulate some legitimate, nondiscriminatory reason for the employee's rejection. If the employer articulates such a justification, the plaintiff must then have a "fair opportunity" to show that the stated justification was in fact a pretext for discrimination.
7. Burdine, 450 U.S. at 253.
8. Ames v. Ohio Dep't of Youth Services, 87 F.4th 822, 825 (6th Cir. 2023).
9. Title VII's nondiscrimination provision renders 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" a protected category. 42 U.S.C. § 2000e-2(a)(1).
10. Bostock v. Clayton County, 590 U.S. 644, 659 (2020).
11. Griggs v. Duke Power Co., 401 U.S. 424 (1971)("[d]iscriminatory preference for any group, minority or majority is precisely and only what Congress has proscribed" in Title VII).
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