The U.S. Supreme Court hears oral arguments in a reverse discrimination case
On February 26, 2025, the United States Supreme Court entertained oral argument in Ames v. Ohio Department of Youth Services, a case that centered on whether a plaintiff who is a member of a majority group must meet a higher burden–namely, showing supporting “background circumstances”–in establishing a prima facie case of discrimination under Title VII.
Background
Plaintiff Ames, a heterosexual woman, began working at the Ohio Department of Youth Services (the “Department”) in 2004. In 2014, she became Administrator of the Prison Rape Elimination Act. Plaintiff applied for a promotion in April 2019 but was not chosen. Plaintiff claims that shortly after, her supervisor suggested Plaintiff retire. In May 2019, Plaintiff received a substantial pay cut and was demoted. The Department then hired a gay man, 25 years old, to fill the position. A gay woman was promoted to the position Plaintiff had applied for later that year. Plaintiff sued the Department claiming discrimination under Title VII based on sexuality and orientation. The court invoked “background circumstance” doctrine which states that members of the majority group must prove “background facts to support the suspicion” that the defendant is the unusual employer who discriminates the majority to establish a primary faci The court also ruled Plaintiff did not have evidence of pretext in her sex-discrimination claim.
The Sixth Circuit upheld. In his concurrence, Kethledge criticised the background circumstances test and noted a circuit split which should be resolved by Supreme Court. The background circumstances test is used by several circuits including the Seventh Circuit, Eighth Circuit, and Tenth Circuit. The Supreme Court agreed to hear the case.
Oral Argument
Unexpectedly, on February 26, 2025, at oral argument, Justice Gorsuch observed that all advocates seemed to be “in radical agreement” with regard to the question presented: that as applied by the Sixth Circuit, the background circumstances doctrine is an improper bar to plaintiffs establishing a prima facie case. The advocates disagreed on whether the Court should provide guidance on what is required to establish a primary case. She urged the Court to overturn the background circumstances rule and argued that “any plaintiff that can produce evidence from which a jury could infer discrimination should go to trial.” Urging the Court to overturn the background circumstances rule, she argued that “any plaintiff that can produce evidence from which a jury could infer discrimination should go to trial.”
Last, after conceding that he was not arguing in support of using the background circumstances doctrine, Respondent’s counsel argued that the Court should still affirm the Sixth Circuit’s ruling because Petitioner had failed to establish that any adverse action against Ames was motivated by her sexual orientation.
Notably, in questioning the Assistant to the EEOC Solicitor General, Justice Alito suggested that the background circumstances test may have been “based on an intuition about the way in which most employers behave.” Justice Alito intimated that, while possibly “sound” in 1973, the year that McDonnell Douglas was decided, this intuition, presumably that members of a majority group are unlikely to be discriminated against by their employers, may “no longer
sound today.”
Implications
Justice Gorsuch’s statement that the advocates were in “radical agreement” that a heightened burden should not be applied to majority group plaintiffs is telling indeed. The statement by Justice Gorsuch that the advocates were in “radical agreement” that a heightened burden should not be applied to majority group plaintiffs is telling. A number of reverse discrimination lawsuits are already pending.
