Supreme Court likely to lower reverse discrimination pleading standards

A potential U.S. Supreme Court ruling removing the “background circumstances” requirement in bias cases would make it easier for workers to bring so-called reverse discrimination claims under Title VII of the Civil Rights Act of 1964, experts say.

During oral arguments held Feb. 26 in Ames v. Ohio Dept. of Youth Services, the justices indicated that they would likely find that the additional requirement, which forces an individual to prove his or her employer “was the unusual entity that discriminated against the majority,” such as white male workers, is an undue burden for plaintiffs.

The doctrine is based on the assumption that discrimination against majority groups is less common and, therefore, more evidence is required.

“The differential background circumstances standard is highly likely to be a thing of the past,” said Seattle-based employment attorney Alyesha Asghar of Littler Mendelson P.C.

Neither the justices nor parties seemed to disagree that establishing a prima facie, or adequately alleged case, at the motion for summary judgment stage should not present a higher burden for those in a historically majority community, she said.

Marlean Ames, a heterosexual white woman, was a Prison Rape Elimination Act administrator for the Ohio Department of Youth Services and was denied a promotion to the department’s bureau chief of quality assurance and improvement in favor of a lesbian colleague who neither applied nor interviewed for the position. Ms. Ames was then demoted and replaced by a gay man who did not apply or interview for her position, court records show.

After filing a charge with the U.S. Equal Opportunity Commission, she sued the department in federal court in Columbus, Ohio, in November 2020 for age, sexual, and sexual orientation discrimination. The trial judge ruled for the employer in March 2022, and the 6th Circuit upheld the ruling, finding that Ms. Ames did not satisfy the background circumstances requirement.

Ms. Ames sought review from the U.S. Supreme Court, which agreed in October 2024 to take up the case.

Xiao Wang, an attorney from the University of Virginia School of Law in Charlottesville, who represents Ms. Ames, told the justices the “background circumstances rule does not eradicate discrimination; it teaches courts to practice it.”

The requirement, or some variation, is applied by the 6th U.S. Circuit Court of Appeals, 7th Circuit, 8th Circuit, 10th Circuit and U.S. Circuit Court of Appeals for the District of Columbia.

A ruling vacating the background circumstances requirement would mean there would not be additional standards in any circuit for a plaintiff in a majority or minority class to prove a prima facie case in a discrimination lawsuit under Title VII, said Juan C. Enjamio, a Miami-based employment attorney at Hunton Andrews Kurth LLP.

“It’s pretty obvious to me that almost every member of the Supreme Court wants to use this case to make a very limited decision regarding whether there should be any additional elements in the prima facie, or initial phase, a plaintiff must meet in order to advance in a Title VII lawsuit when that plaintiff is a part of the majority,” he said.

Experts say that eliminating the background circumstances requirement will not significantly affect the filing of reverse discrimination lawsuits brought by members of a majority class who believe they were adversely impacted by diversity, equity, and inclusion initiatives.

“When the Supreme Court, as I believe it will, gets rid of the background circumstances rule, it’ll be a headline, and people will become slightly more aware, but it won’t usher in a sea change that hasn’t already started to happen,” said Hartford, Connecticut-based Hugh F. Murray III, partner and chair of the employment and labor practice at McCarter & English LLP.

“I am not sure it will directly impact the number of lawsuits filed in a meaningful way, but it will certainly send a message to potential plaintiffs and the plaintiffs bar that reverse discrimination claims are viable even in the absence of some additional evidence that the employer is ‘the unusual employer who discriminates against the majority,’” said Michael Abitabilo, a White Plains, New York-based employment attorney at Jackson Lewis P.C. said.

As companies await the Supreme Court’s ruling, employers should articulate well-documented, nondiscriminatory reasons for any employment-related decision and ensure that the reasons can withstand scrutiny, Mr. Enjamio said.