On June 5, the U.S. Supreme Court unanimously held in Ames v. Ohio Dept. of Youth Services that courts cannot apply a heightened evidentiary standard to majority-group plaintiffs when deciding discrimination claims.
The decision vacates and remands a Sixth Circuit ruling that had required majority-group plaintiffs — such as heterosexual individuals or white employees — to provide “background circumstances” evidence suggesting the employer is an “unusual” discriminator against the majority. In a noteworthy footnote, concurring justices asserted that affirmative action and diversity, equity and inclusion policies have led to discrimination against members of majority groups.
After this decision, courts must apply the same evidentiary standard to discrimination claims regardless of whether the individual is a member of a majority or minority group.
Background
The case arose from a lawsuit filed by a heterosexual woman employed by the Ohio Department of Youth Services. Marlean Ames alleged she was denied a promotion and subsequently demoted in favor of LGBTQ candidates, and that these actions constituted discrimination based on her sexual orientation in violation of Title VII of the Civil Rights Act of 1964.
Both the district court and the Sixth Circuit required Ames, as a member of a majority group, to provide additional “background circumstances” evidence showing that her employer was an “unusual” employer who discriminates against majority-group members. Concluding Ames failed to meet this heightened standard, the lower courts granted summary judgment in favor of the employer.
Supreme Court’s Analysis
The Supreme Court held that the “background circumstances” rule is inconsistent with the text of Title VII and the court’s precedents. The court emphasized several key points:
- Title VII’s disparate-treatment provision prohibits discrimination against “any individual” on the basis of race, color, religion, sex or national origin, without distinction between majority- and minority-group members.
- The court’s decisions show that Title VII protects all individuals equally, regardless of group membership.
- The “background circumstances” rule imposes an inflexible and group-based evidentiary requirement that is unsupported by the statutory text and contrary to the individualized focus of Title VII.
In a concurrence, two justices further critiqued the “background circumstances” rule because it is premised on the belief it is unusual for employers to discriminate against members of majority groups. The concurrence noted “diversity, equity and inclusion initiatives and affirmative action plans ... have often led to overt discrimination against those perceived to be in the majority.”
Implications
This decision resolves a circuit split regarding whether majority-group plaintiffs must meet a heightened evidentiary standard to prove discrimination. They do not. The decision is particularly important for employers in Michigan and surrounding states where the background circumstances requirement applied.
The concurrence suggests that some courts and judges may view affirmative action plans and DEI initiatives as suggestive of discrimination against individuals who belong to majority groups. Plaintiffs who are members of so-called majority groups are likely to use the decision to label affirmative action and DEI policies as evidence of discriminatory motivation for adverse employment actions.
Key Takeaways for Employers
- Employers should be aware that Title VII’s protections apply equally to all individuals, regardless of majority or minority status. Every employee falls within a protected group.
- Courts may not impose heightened evidentiary burdens on majority-group plaintiffs at the prima facie stage of Title VII litigation.
- Employers should not consider race, color, religion, sex or national origin in making employment decisions even if the goal of doing so is to increase diversity.
- If an employer has an affirmative action plan or DEI initiative, the employer should review the plan or initiative and how it is implemented to ensure it complies with nondiscrimination laws. To the extent that employees are excluded from participating in certain initiatives (e.g., employee resource groups, training programs, etc.) because of their race, sex or other protected characteristic, Ames makes clear that such employees need not satisfy a heightened evidentiary standard to demonstrate they are worse off because of the exclusionary practice.
