Supreme Court Clarifies Standard for Reverse Discrimination Suits Under Title VII

In a unanimous decision authored by Justice Ketanji Brown Jackson, the Supreme Court last Thursday held that Title VII of the Civil Rights Act of 1964 (“Title VII”) imposes no additional requirements on majority-group plaintiffs who allege so called “reverse” employment discrimination claims.

Background

Title VII makes it unlawful for covered employers “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual . . . , because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). These protections against discrimination include protections against discrimination based on sexual orientation. 

The traditional framework for evaluating Title VII claims is the three-step framework set forth in McDonnell Douglas Corp. v. Green, 411 U. S. 792. At the first step, the plaintiff must make a prima facie showing that the defendant acted with a discriminatory motive. If the plaintiff clears that hurdle (which for most is not onerous), the burden then shifts to the employer at step two to articulate a legitimate, nondiscriminatory reason for the employer’s action. If the employer carries that burden, the plaintiff must then show at step three that the legitimate, nondiscriminatory reason offered by the employer was a pretext for discrimination.

The Decision

Marlean Ames filed a Title VII suit against her employer, the Ohio Department of Youth Services, after she was denied a promotion and subsequently demoted. Ames, who is heterosexual, alleged that the promotion she sought was awarded to a less-qualified lesbian woman who had not applied for the role and that, after Ames was demoted, her former position was given to a less-qualified gay man who had also not applied for her job. Applying circuit court precedent, the Sixth Circuit held that Ames had failed to establish a prima facie case of sex discrimination because she failed to show “background circumstances” (e.g., information about a decisionmaker’s protected traits) to “support the suspicion that the defendant is that unusual employer who discriminates against the majority.”

The Supreme Court granted review of the Sixth Circuit’s ruling to decide whether Title VII imposes an additional “background circumstances” requirement on majority-group plaintiffs.

Ultimately, the Court held that Title VII imposes the same evidentiary requirements on majority-group and minority-group plaintiffs.

In support of this holding, the Court pointed out that the text of Title VII “draws no distinctions between majority-group and minority-group plaintiffs” and reasoned that Congress left no room for courts to impose special requirements on majority-group plaintiffs alone. Because Title VII does not impose a heightened evidentiary standard on members of majority groups in order to carry out their burden under the first step of the McDonnell Douglas¹ framework, the Court deemed the “background circumstances” requirement on majority-group plaintiffs unlawful.

The Impact

This ruling resolves a circuit split as to whether majority-group plaintiffs are subject to a different evidentiary burden at the McDonnell Douglas first step. Where the Sixth, Seventh, Eighth, Tenth and D.C. Circuits had adopted the additional “background circumstances” requirement, the Third and Eleventh Circuit expressly rejected the requirement, and the remaining circuits simply applied the McDonnell Douglas framework.

This decision, which conveys a clear standard for reverse discrimination litigation, is timely as employers face an increased threat of these suits in connection with the recent backlash against public- and private-sector initiatives to promote diversity, equity and inclusion in the workforce. Too, the Court’s ruling is consistent with recent joint guidance from the U.S. Equal Employment Opportunity Commission and the U.S. Department of Justice, which signals a new evolution in how Title VII protections should be understood by employers and employees.

Next Steps for Employers

Employers subject to the requirements of Title VII should review their policies on equal employment opportunity and revise them as needed to ensure that they clearly prohibit discrimination against any group, including majority groups. Employers should also continue to apply all workplace policies uniformly, regardless of employee background, and apply neutral and objective criteria for all employment decisions—which cannot be based on an individual’s protected characteristics, regardless of who that employee is.

For assistance with reviewing internal policies and practices or responding to reverse discrimination claims, please contact your local Quarles & Brady attorney or:

• Camille Roe: (314) 696-5129 / camille.roe@quarles.com
• Brenna Vargas: (414) 277-5328 / brenna.vargas@quarles.com

END NOTES

¹ Notably, in a concurring opinion joined by Justice Neil Gorsuch, Justice Clarence Thomas wrote that he would be “willing to consider” whether the McDonnell Douglas framework is useful to courts going forward, opining that it requires too much proof at the summary judgment stage to be consistent with existing standards and puts a higher burden on plaintiffs than Title VII requires.