As the summer comes into full swing and many employees take time off to enjoy summer vacation, the same cannot be said for employers. It has been no secret that private sector diversity, equity and inclusion (DEI) programs have been subject to increased scrutiny from the Trump administration and the Equal Employment Opportunity Commission and other government agencies. Now, the Supreme Court has confirmed that majority-group employees are afforded the same protections under Title VII as minorities and are not subject to any heightened standard when asserting a claim of discrimination. The Supreme Court's unanimous decision turns up the heat on employers to ensure their policies and practices do not favor any particular group of individuals over others and protects all employees – including those in perceived majority groups – from employment decisions based on race, color, religion, sex or national origin.
Background: Title VII's Burden-Shifting Analysis in 'Reverse' Discrimination Claims
Title VII of the Civil Rights Act bars employers from discriminating against employees on the basis of race, color, religion, sex (including pregnancy, sexual orientation and transgender status) or national origin. Since its adoption in 1964, Title VII has been a pivotal instrument for minorities bringing allegations of workplace discrimination.
For more than 50 years, courts have used the three-step McDonnell Douglas burden-shifting analysis to evaluate Title VII discrimination claims. First, the plaintiff must establish a prima facie case that the employment decision at issue was, at least in part, influenced by a discriminatory motive. This initial burden is typically satisfied by introducing evidence the employee was qualified for the position, suffered an adverse action and was treated less favorably than others outside their protected class. This initial burden is not onerous. If successful, the employer must then provide a legitimate, nondiscriminatory reason for the action. The burden then shifts back to the employee to prove this reason is pretextual.
When analyzing a claim of discrimination brought by a member of a majority group (often referred to as "reverse discrimination claims"), the 6th, 7th, 8th, 10th and D.C. Circuits adopted a heightened "background circumstances" rule. Under this rule, in addition to the usual prima facie requirements, reverse discrimination plaintiffs were required to also introduce evidence of "background circumstances" to support the suspicion that the defendant "is that unusual employer who discriminates against the majority." Reverse discrimination plaintiffs could satisfy this burden either by presenting evidence that a member of a relevant minority group made the employment decision at issue or by presenting statistical evidence showing a pattern of discrimination against members of the majority. This rule effectively subjected majority-group plaintiffs – typically White, male or straight employees – to a different, highly specific evidentiary standard to establish a prima facie case of discrimination, not applicable to minority plaintiffs.
Recently, in Ames v. Ohio Department of Youth Services, the Supreme Court unanimously invalidated the "background circumstances" rule, finding that nothing in the text of Title VII distinguished between majority-group and minority-group plaintiffs. Now, all discrimination claims – including reverse discrimination claims brought by plaintiffs in majority groups – will be evaluated under the same evidentiary framework.
Overview: Ames v. Ohio Department of Youth Services
Marlean Ames, a heterosexual woman, had been employed by the Ohio Department of Youth Services in various capacities for 15 years. In 2019, Ames applied for a promotion to a newly created management position but was not selected for the role. Instead, the agency selected a lesbian woman for the position. A few days after her interview for the managerial position, Ames was demoted to a secretarial position, and a gay man was hired to fill her previous position. Ames subsequently filed a lawsuit pursuant to Title VII for unlawful discrimination based on sex, alleging she was denied the promotion and demoted because of her sexual orientation.
The U.S. District Court for the Southern District of Ohio granted the agency's summary judgment and dismissed Ames' Title VII discrimination claims, finding Ames had failed to establish a prima facie case of discrimination. The 6th U.S. Circuit Court of Appeals affirmed. Both courts reasoned that because Ames was a straight woman, she was required to satisfy the heightened "background circumstances" rule. Because Ames had not introduced any evidence of such "background circumstances," both courts found Ames failed to establish a prima facie case of discrimination.
In a rare unanimous decision, the Supreme Court vacated the lower court's judgment, finding there was no justification in either Title VII or previous Supreme Court precedent to support the 6th Circuit's adoption of the heightened "background circumstances" rule in reverse discrimination cases involving majority-group plaintiffs, like Ames. Instead, the Court remanded the case to the district court to analyze Ames' claims of discrimination under the standard McDonnell Douglas burden-shifting framework without any heightened burden.
As justification for its invalidation of the "background circumstances" rule, the Court noted the plain text of Title VII drew no distinction between majority-group and minority-group plaintiffs. Instead, the Court explained, Title VII focuses squarely on individuals, not groups, prohibiting discrimination against "any individual" because of that individual's race, color, sex, or national origin. "By establishing the same protections for every 'individual' – without regard to that individual's membership in a minority or majority group – Congress left no room for courts to impose special requirements on majority-group plaintiffs alone."
The Court found further support for the invalidation of the "background circumstances" rule in its prior Title VII decisions in Griggs v. Duke Power Co., Bostock v. Clayton County, and McDonald v. Santa Fe Trail Transportation Co., wherein the Court expressly rejected arguments that Title VII did not prohibit discrimination against White or male employees. Instead, in each of these cases, the Court expressly found Title VII's prohibition against discrimination applied to "any group, minority or majority" and "protect[ed] individuals of both sexes from discrimination, and does so equally," and "upon the same standards[.]" Thus, as Justice Ketanji Brown Jackson explained, it was well established "that the standard for providing disparate treatment under Title VII does not vary based on whether or not the plaintiff is a member of a majority group." Finally, Jackson noted that by requiring all majority-group plaintiffs to meet "the same, highly specific evidentiary standard in every case," the "background circumstances" rule ignored the Court's express instruction in McDonnell Douglas against inflexible approaches to how a plaintiff may satisfy the initial prima facie burden.
Accordingly, the Court concluded Title VII does not impose a heightened burden on majority-group plaintiffs and confirmed that all Title VII plaintiffs (regardless of their race, color, religion, sex or national origin) are subject to the same "not onerous" evidentiary burden when establishing a prima facie case of discrimination.
Key Takeaways for Employers
Technically, the Ames decision does not introduce any new obligations on employers to ensure compliance with Title VII. Instead, the decision serves as yet another reminder to employers that Title VII's protections are universal, shielding all employees (not just minority employees) from employment decisions based, even in part, on the employee's race, color, religion, sex, or national origin. The Ames decision combined with recent EEOC guidance and executive orders targeting DEI programs reiterate the need for employers to review and evaluate their employment policies and practices with the following key considerations in mind to bolster their commitment to equal opportunity in the workplace:
- Apply Antidiscrimination and Harassment Policies Equally: If they have not done so already, employers should, at a minimum, review their policies with counsel to make sure they do not contain any preferences or exclusionary practices that favor any group of employees over another based on protected characteristics. Employers must also make sure there are no existing hiring quotas or other practices that benefit individuals of certain protected characteristics over others for recruitment efforts, in relation to professional opportunities, and with respect to adverse employment decisions. The standard of equal treatment must be applied consistently and impartially across the board in practice, regardless of any employee's perceived "majority" status.
- Avoid Any Consideration or Discussion of an Employee's Protected Characteristic: All too often, when employers are making employment decisions, they are more comfortable with taking adverse employment actions against an employee in a majority group because they perceive that employee to not be in a "protected class." Ames makes clear that Title VII prohibits employers from taking into account the race, color, religion, sex or national origin of any employee when making an employment decision, not just employees belonging to certain categories of these protected classes. If an employee's perceived majority status is a factor that contributes to an employment decision or action, that would constitute unlawful discrimination. Managers and human resources (HR) professionals should refrain from considering, discussing or even referencing an employee's race, color, religion, sex, national origin or other protected classification with respect to an employment decision. Instead, all discussions surrounding employment decisions should focus solely on legitimate, nondiscriminatory reasons for the decision.
- Consistently Investigate All Employee Complaints: Employers should not dismiss or downplay complaints of discrimination or harassment simply because the employee belongs to a majority group or because the alleged wrongdoer is a member of a minority group. Instead, employers must evaluate complaints of discrimination and harassment from all employees with equal seriousness and subject to the same standards.
- Train All Managers on All Kinds of Bias: Employers should update workplace training to include discrimination and unconscious bias toward majority groups. Employers should emphasize impartiality in discipline, promotion, and termination decisions and reiterate to all managers, HR professionals and other decision-makers (including those who are members of minority groups) that they are prohibited from making any employment decision based on an employee's race, color, religion, sex, national origin, or other protected status and that this prohibition applies equally across the board to majority and minority groups alike.
- Be on Alert for a Rise in Discrimination Claims Brought by Members of Majority Classes: Often employers believe there is no risk associated with employment decisions involving members of majority groups. Indeed, until recently, "reverse discrimination" claims brought by members of majority groups were not common practice. However, employers should anticipate an increase in the number of "reverse discrimination" claims brought by majority-group employees, particularly in cases involving DEI initiatives or allegations stemming from promotions and terminations, now that Ames has confirmed that such claims are not subject to a higher or more difficult burden of proof.
Conclusion
Ultimately, federal, state and local law remains unchanged – employers cannot discriminate against individuals based on any protected characteristic. However, the ongoing scrutiny of DEI programs, combined with the Supreme Court's confirmation that "reverse discrimination" claims are subject to the same standards as other discrimination claims, makes it more important than ever that employers review and, where appropriate, modify their policies and practices.The Baker Labor and Employment Practice Group is helping various organizations with their internal review of these policies and employment practices and decisions and is ready to assist your organization.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
