SCOTUS to Review the “Background Circumstances” Heightened Pleading Standard in Reverse Discrimination Cases

PDF

Co-Authored by: Julian Owens, Law Clerk

On October 4, 2024, the Supreme Court of the United States granted a writ of certiorari,^[1] agreeing to hear arguments in Ames v. Ohio Department of Youth Services, a Sixth Circuit case that seeks to determine whether the standard burden of proof for minority plaintiffs is equally applicable to those who are majority plaintiffs in cases alleging discrimination or retaliation under Title VII of the Civil Rights Act of 1964. Currently, five circuit courts of appeals across the country have held that those plaintiffs whose protected class falls within a majority (rather than a minority), such as white, male, and heterosexual claimants, must meet a heightened standard in pleading their case under Title VII.  

The heightened pleading standard at issue, followed by the Sixth, Seventh, Eighth, Tenth, and D.C. Circuits, requires that majority plaintiffs, in addition to establishing a prima facie case of discrimination under the McDonnell Douglas framework, show the existence of “background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.”^[2] Generally, this showing can be made with evidence that a member of the relative minority group made the employment decision at issue or that there was a pattern of discriminatory conduct from management to members of that particular majority group.^[3]

In the Ames case, Marlean Ames, a white heterosexual woman who was employed by the Ohio Department of Youth Services, alleges she was discriminated against based on her sexual orientation when her homosexual supervisor wrongfully denied her a promotion in favor of a minority homosexual worker with less experience. On December 4, 2023, the Sixth Circuit Court of Appeals affirmed summary judgment in favor of the Ohio Department of Youth Services as to Ms. Ames’ claim of sexual orientation discrimination, finding that she failed to make the necessary evidentiary showing of “background circumstances.” 

In a concurring opinion, Circuit Judge Raymond Kethledge urged the Supreme Court to address the “background circumstances” rule, stating that the rule constitutes a “deep scratch across [the] surface” of Title VII.^[4] He explored the need for certiorari on this issue by illustrating the discrepancies among jurisdictions in enacting the rule, with the five circuits stated above having adopted the rule, two circuits expressly rejecting the rule (Third and Eleventh Circuits), and five other circuits simply not applying the rule at all (First, Second, Fourth, Fifth, Ninth Circuits).^[5]

In line with Judge Kethledge’s wishes, the Court has set oral arguments for February 26, 2025, wherein the Court will decipher this convoluted issue and make a conclusion as to whether majority plaintiffs will continue to be required to plead the additional evidence of “background circumstances.” The Equal Employment Opportunity Commission (EEOC) and the Department of Justice (DOJ) have both filed amicus briefs arguing that the Court should reject this heightened standard because it has neither a basis in Title VII’s text nor in the Court’s precedent, which assure procedural equality for all claimants.^[6]

If the Court agrees with the EEOC and the DOJ, certain circuits may see an influx of litigation from majority employees and former employees who will no longer have to advance past this additional pleading obstacle.

Maynard Nexsen’s Labor and Employment attorneys stand ready to provide counsel and additional information to employers on anti-discrimination laws, rulings, and litigation, as well as any other labor and employment issues. Please contact the labor and employment attorneys at Maynard Nexsen if you have further questions.

_{[1] Ames v. Ohio Dep't of Youth Servs., 87 F.4th 822, 825 (6th Cir. 2023), cert. granted, No. 23-1039, 2024 WL 4394128 (U.S. Oct. 4, 2024).}

_{[2] Ames, 87 F.4th at 825 (citing Arendale v. City of Memphis, 519 F.3d 587, 603 (6th Cir. 2008)).}

_{[3] See id.}

_{[4] Id. at 827.}

_{[5] Id.}

_{[6] Brief for Petitioner at 10–11, Ames v. Ohio Dep't of Youth Servs., 87 F.4th 822 (6th Cir. 2023).}