Rise in reverse discrimination suits expected after SCOTUS ruling

The U.S. Supreme Court’s reinstatement of a woman’s employment discrimination lawsuit turned up the volume on reverse discrimination claims and will likely result in more lawsuits like it, experts say.

The court’s unanimous June 9 decision in Marlene Ames v. Ohio Dept. of Youth Services vacated a 6th U.S. Circuit Court of Appeals ruling that the woman could not pursue her claims because she failed to satisfy a background-circumstances requirement.

The requirement is based on the assumption that because discrimination against majority groups is less common, more evidence is required to prove it.

The justices rejected the notion that members of a majority group, such as the white, female heterosexual plaintiff, must overcome a heightened pleading standard to bring a discrimination claim against an employer.

Ms. Ames alleges that she was denied a promotion in favor of a lesbian colleague who neither applied nor interviewed for the position. Ms. Ames later was demoted, and her position was filled by a gay man who also did not apply or interview for the role, court records show.

The Supreme Court ruling “was a great decision,” said Jeffrey D. Jennings, an attorney with Sacramento, California-based public interest firm Pacific Legal Foundation, which supports libertarian causes and filed a “friend of the court” brief in support of the plaintiff.

“It’s important that the civil rights laws protect everybody, which is what Congress intended. Civil rights are not just for people who are in one group or another. The civil rights laws are meant to protect all of us,” Mr. Jennings said.

The ruling “equals the playing field” for plaintiffs alleging violations of Title VII of the Civil Rights Act of 1964 and could open the door for more members of a majority class to file similar lawsuits, said Alyesha Asghar, a Seattle-based employment litigator at Littler Mendelson P.C.

The decision also could spur more lawsuits because the background-circumstances requirement might have dissuaded plaintiffs lawyers in circuits that applied the test from filing cases, Ms. Asghar said.

“This case essentially does away with the concept of reverse discrimination,” said Eric Meyer, a Philadelphia-based employment, labor and benefits partner at Pierson Ferdinand LLP.

“The Supreme Court made it clear that employment discrimination lawsuits get vetted on an individual level, not at a group level. We don’t look at someone’s belonging to a minority or majority group. Title VII prohibits discrimination against any individual on the basis of protected characteristics,” he said.

“The significance for employers will be in the attention that it’s brought to the issue for employees and other individuals who might be bringing charges,” said Andrew Scroggins, a Chicago-based employment attorney at Seyfarth Shaw LLP.

People in majority groups may no longer be deterred from suing because they thought they would need to provide more extensive evidence of discrimination, he said.

“Now that they are aware that their claims are going to get judged by the same standards as the claims brought by people in protected minority groups, they may feel greater motivation to bring a charge,” Mr. Scroggins said.

The ruling has brought the issue to the attention of politicians and plaintiffs lawyers, said Christopher DeGroff, a Chicago-based employment lawyer at Seyfarth Shaw.

“We know anecdotally that employees themselves are receiving the message. We’re already seeing administrative charges” and plaintiffs lawyers moving forward with reverse-discrimination claims, Mr. DeGroff said.

There were upticks in demand letters and charges raising these theories submitted to the U.S. Equal Employment Opportunity Commission even before the ruling, he said.

“It’s only going to accelerate post-Ames,” he said.