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On Wednesday, February 26, the U.S. Supreme Court heard oral arguments in Ames v. Ohio Department of Youth Services. The question facing the Justices is whether, in addition to pleading the other elements of an employment discrimination claim under Title VII of the Civil Rights Act of 1964, a majority-group plaintiff must also show “background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.” Many news outlets refer to this as a reverse discrimination claim.

Ohio woman Marlean Ames claims she suffered sex and sexual orientation discrimination in her job with the Ohio Department of Youth Services because she is a heterosexual woman. Ames argues she was passed over for a promotion and later demoted in favor of a lesbian woman and a heterosexual man, respectively, both of whom she argued were less qualified.

In adjudicating her claim, the Sixth Circuit affirmed the trial court’s rejection of Ames’ sexual orientation discrimination claim, finding that as a heterosexual—a member of a “majority” group—she had failed to demonstrate background circumstances sufficient to prove that her employer was of the “unusual” kind that would discriminate against the majority. Specifically, it determined that Ames could not prove the supervisors who denied her a promotion and demoted her were part of a minority group (i.e., lesbian, gay, bisexual, or transgender), or that there was a pattern of discrimination against straight employees by the Ohio Department of Youth Services.

In addition, the Sixth Circuit found that while a man had replaced Ames when she was demoted, the department had provided legitimate, nondiscriminatory reasons for her demotion, including her failure to improve her performance. In the court’s view, Ames failed to demonstrate that the department’s reasons for not promoting (and eventually demoting) her were insufficient or pretextual, because she hadn’t adequately pled “background circumstances” demonstrating the department regularly discriminated against those like her.

Based on their questioning, the Supreme Court Justices seemed skeptical that the Sixth Circuit got its analysis right.

Playing a significant role in the arguments and briefing for Ames was the Supreme Court’s decision in McDonnell Douglas Corp. v. Green (1973), wherein the court established the burden-shifting framework for adjudicating a motion for summary judgment for a Title VII disparate treatment discrimination claim.

The McDonnell-Douglas framework is typically employed when a case lacks direct evidence of discrimination. It has three steps: 1) the plaintiff must establish a prima facie case of discrimination by a preponderance of the evidence; if he does that, then 2) the burden of production shifts to the employer to rebut that prima facie case by articulating some legitimate, nondiscriminatory reason for the employee’s termination or demotion; if the employer does that, then 3) the plaintiff must show that the employer’s proffered reason is merely a pretext for behavior actually motivated by discrimination.

But the Sixth Circuit in Ames held that majority-group plaintiffs—including heterosexuals—must add one more step to this framework. To proceed past step one of the McDonnell-Douglas analysis, they must show additional “background circumstances” making anti-majority bias plausible.

During oral arguments, counsel for Petitioner Marlean Ames, Xiao Wang, stated the matter simply: “All Ms. Ames is asking for is equal justice for all.” He stressed that while Title VII aims to eradicate all discrimination in the workplace, the “background circumstances” rule instructs courts to practice discrimination by sorting individuals into majority and minority groups and then requiring a majority-group plaintiff to meet an additional evidentiary burden—something inconsistent with the plain text of Title VII itself.

Justice Neil Gorsuch pointed out that counsel for both Ames and her employer were in “radical agreement” on the fact that federal employment laws impose the same requirements on all plaintiffs. Wang agreed, adding further that a dual-track system for success under Title VII, with differing burdens of proof for plaintiffs based on their protected characteristics, would, itself, be discriminatory.

Justice Amy Coney Barrett posed a hypothetical to Wang, asking whether a ruling in Ames’s favor would open the door to more employment discrimination lawsuits by making it easier to bring “reverse discrimination” cases. Wang countered that federal courts in other circuits have not seen the “floodgates open,” even though more than half of the federal courts of appeals do not apply the Sixth Circuit’s “background circumstances” rule.

Assistant to the U.S. Solicitor General Ashley Robertson (arguing as amicus curiae in support of vacatur of the 6th Circuit’s opinion) argued that the lower court had required Ms. Ames to produce evidence that Title VII itself does not require and that the court’s opinion demanded more evidence to make out a prima facie case of discrimination than even the Supreme Court itself had determined was necessary, including in McDonnell Douglas.

Ohio Solicitor General Elliot Gaiser, arguing for the Ohio Department of Youth Services, asked the Justices to leave the lower court ruling in place, noting that the “background circumstances” requirement was simply a “method of analysis” for courts to use in cases like Ames’s rather than “an additional element” for plaintiffs to show. Gaiser argued that Ames had failed to meet even the first step of the McDonnell-Douglas analysis that “should apply to every Title VII plaintiff,” because she could not establish prima facie evidence of discrimination. Proving this, he noted, would require a factual record “complete enough for the court to enter judgment for the plaintiff before the burden shifts to the employer” to prove a non-discriminatory reason for termination or demotion. That factual record would include a demonstration of “background circumstances.”

Assistant Solicitor General Robertson put a refining point on the morning’s argument: “[W]e share Ohio’s concerns with making sure that meritless cases don’t reach trial. We simply think that raising the standard at step one would be exactly the wrong way to address that concern.”

A decision in Ames is expected by early summer.