Supreme Court to Confront Circuit Split over Reverse Discrimination in Employment Claims

By: Emma Mansberg

In the wake of the Supreme Court’s recent rulings limiting race-conscious policies, there has been a marked rise in the number of reverse discrimination employment cases. Consequently, district and appellate courts have been grappling with the question of how to evaluate employment discrimination claims when an individual who is part of a majority group alleges discrimination. As of October 4, the Supreme Court of the United States has decided to take on this issue of reverse discrimination in employment, adding a case arising out of the Sixth Circuit to this term’s docket.

The case, Ames v. Ohio Department of Youth Services, centers around a heterosexual, female employee who alleged that the Ohio Department of Youth Services demoted her, replaced her with a gay man, and later placed a gay woman in another leadership position within the Department; she contended these events constituted employment discrimination.[1] Ames asserted sexual orientation and gender as the basis for these discrimination claims.

In a typical employment discrimination claim, the Plaintiff must establish these four elements: that “(1) he or she was a member of a protected class; (2) he or she suffered an adverse employment action; (3) he or she was qualified for the position; and (4) he or she was replaced by someone outside the protected class or was treated differently than similarly-situated, non-protected employees.” However, because Ames is not part of a protected class as to sexual orientation, she must prove not only these four elements but also an additional element to establish reverse discrimination.

The additional element the Sixth Circuit has elucidated is this: a plaintiff alleging reverse discrimination, like Ames, must establish “background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.”[2]  Applying this “background circumstances test,” courts have accepted a variety of evidence. For example, background circumstances have been established where an individual of a minority group made an allegedly discriminatory employment decision against someone in a majority group. Further, background circumstances have been established where there was data evidencing a pattern of discrimination against members of a majority group. Determining Ames had not made this showing of background circumstances, the Sixth Circuit upheld the district court’s grant of summary judgment in favor of the Ohio Department of Youth Services.

Reviewing the Sixth Circuit’s decision, the question before the Supreme Court is whether this background circumstances test should stand as an additional element for a reverse discrimination plaintiff’s prima facie case. While other courts have joined the Sixth Circuit in applying this test, some courts have rejected this test, evaluating claims of reverse discrimination under the typical Title VII framework.[3]

The Supreme Court will resolve this circuit split and decide the trajectory of how our federal courts consider cases of reverse discrimination. A rejection of this test will ease the burdens required of a plaintiff alleging reverse discrimination, potentially increasing his or her likelihood of success against an employer. Should you or another member of your business have any questions about the impact of this case on current and future employment practices or need advice regarding discrimination claims against your organization please contact a Wyatt lawyer. In addition, be sure to revisit the Wyatt Employment Law Report blog for further developments and updates related to this case, as well as other employment law topics.

[1] Ames v. Ohio Dept. of Youth Servs., 87 F.4^th 822, 824 (6th Cir. 2023).

[2] Id. at 825 (quoting Arendale v. City of Memphis, 519 F.3d 587, 603 (6th Cir. 2008)) (internal quotation marks omitted) (emphasis added).

[3] The Third and Eleventh Circuits have explicitly rejected the background circumstances test. See Petition for Writ of Certiorari, Ames, at 9 (No. 23-1039) (referencing Smith v. Lockheed-Martin Corp., 644. F.3d 1321, 1325 n. 15 (11th Cir. 2011) and Iadimarco v. Runyon, 190 F.3d 151, 163 (3d Cir. 1999). In contrast, the First, Second, Fourth, Fifth, and Ninth Circuits have adopted standards similar to the Sixth Circuit’s background circumstances test. See Reply Brief for the Respondent, Ames, at 28-32 (No. 23-1039).