U.S. Supreme Court to Review “Reverse Discrimination” Standard, Decision Could Impact Connecticut Employers

The U.S. Supreme Court will decide whether members of “majority” groups have a heightened standard for pleading and proving workplace discrimination cases. The high court agreed to review a case in which a heterosexual woman claimed she was discriminated against because of her sexual orientation. The Sixth Circuit found that she did not have a case, citing its standard that majority-group plaintiffs must demonstrate “background circumstances” above and beyond what is required for minority-group plaintiffs to maintain a discrimination case. If the Supreme Court strikes down the so-called “background circumstances” test, it could pave the way for more so-called “reverse discrimination” lawsuits brought by members of majority groups.

Ames v. Ohio Department of Youth Services

Marlean Ames began working at the Ohio Department of Youth Services in 2004 and earned several promotions to become a program administrator. In 2017, she started reporting to a new supervisor, who was a homosexual woman. Two years later, Ames applied for a promotion to the role of bureau chief of quality but did not get it. Shortly after that, the department’s director and assistant director, both heterosexual, removed Ames from her position as program administrator, offering her a choice between a demotion and termination. She chose the demotion, which resulted in a significant pay cut. The department then gave the program administrator position to a gay man and the bureau chief of quality position to a gay woman, both of whom were allegedly less qualified than Ames.

Ames filed a discrimination lawsuit against her employer under Title VII of the Civil Rights Act of 1964, claiming she was demoted and denied a promotion because of her sexual orientation. However, the trial court dismissed the case, and the Sixth Circuit affirmed the decision. To bring a discrimination claim with indirect evidence, a member of a minority group needs to show:

• They are a member of a protected class.

• They were subject to an adverse employment decision.

• They were qualified for the position.

• The employer treated another person not a member of the same protected class more favorably.

However, as heterosexuals are the majority in both number and power in the U.S., the Sixth Circuit held that, in the absence of direct evidence of discrimination, the plaintiff must also show “background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.” The court stated that background circumstances could include evidence that a member outside of the plaintiff’s majority class made the employment decision at issue or that there was statistical evidence showing a pattern of discrimination against heterosexuals beyond the plaintiff’s own experience.

What Other Circuits Have Found

In addition to the Sixth Circuit, the Seventh, Eighth, Tenth, and D.C. Circuits also require majority-group plaintiffs to show background circumstances. Conversely, the Third and Eleventh Circuits have expressly rejected the background circumstances element. The remaining five circuits, including the Second Circuit – which encompasses Connecticut – have neither applied nor rejected the rule. In the Second Circuit, the matter has not yet come up in a discrimination case involving indirect evidence.

Supreme Court Case

The Supreme Court will hear the case sometime during its current term, which extends to June 2025. While it is unknown how the court will rule, its decision in a 2023 affirmative action case may provide a clue. In Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, the court reversed decades of precedent in finding that race-conscious college admissions policies – which had been instituted to make student bodies more diverse – violated the Equal Protection Clause of the Fourteenth Amendment.  This decision – in which the court ruled that no one group should be subjected to different standards than another – may portend a rejection of the background circumstances test. 

How Employers Can Protect Themselves

If the court strikes down the “background circumstances” rule, this may open the door for more workplace discrimination lawsuits brought by majority groups, such as Caucasians and men. 

Many employers are focused on meeting Diversity, Equity and Inclusion (DEI) goals in the workplace, but employers must ensure their DEI policies follow all applicable laws. When making decisions regarding hiring, firing, promotions and demotions, employers must be mindful that all employment decisions should be supported by legitimate, non-discriminatory reasons. Certain DEI practices could increase the risk of reverse discrimination lawsuits. For instance, if two similarly qualified candidates of different genders, races or sexual orientations apply for the same promotion, and the company uses gender, race or sexual orientation as the tiebreaker, it could expose the company to liability.

When interviewing inside and outside candidates for open positions, companies should take contemporaneous notes and document why they chose one candidate over the others, ensuring the documented reasons are related to merit and are neutral with respect to protected characteristics like race, gender or sexual orientation. Valid reasons for choosing one candidate over others include superior education, experience or skills. But, they can also include less quantifiable reasons, such as one candidate appearing to be more enthusiastic or a better team player, if these reasons are neutral concerning protected characteristics. Similarly, for firings, demotions and other adverse employment decisions, an employer should ensure that the reasons are performance-related, well-documented, and supported by employee reviews and other records.

While one cannot stop people from bringing claims, proper documentation can serve as a sort of bulletproof vest, ensuring you are protected in the event of a lawsuit from an employee, former employee or prospect. You can continue to pursue DEI goals, but be mindful that the whole point of DEI is not to give someone a leg up but to put everybody on a level playing field.

Joshua M. Auxier, a partner at FLB Law in Westport, Conn., is a litigator with nearly two decades of experience representing clients in professional liability, directors and officers liability, and general liability matters, including representing employers in employment law matters. Contact Josh at auxier@flb.law or 203.635.2200. For more information about FLB Law, click here.