Jonathan Segal is a partner with Duane Morris and managing principal of the Duane Morris Institute.
To prove discrimination, does a “majority” plaintiff have a heavier burden of proof than does a “minority” plaintiff?
Based on the U.S. Supreme Court’s oral argument last month, the answer likely is “no.”
On Feb. 26, 2025, the court heard oral argument in Ames v. Ohio Department of Youth Services. In Ames, the plaintiff alleged she was discriminated against because of her sexual orientation, heterosexual. The 6th U.S. Circuit Court of Appeals granted summary judgment for the employer because Ames failed to establish “background circumstances.”
“Background circumstances”
“Background circumstances” is an additional requirement in the 6th Circuit where the plaintiff alleging discrimination is a member of a majority group, for example, White, male or straight. The additional requirement rests on the premise that it would be “the unusual employer” that would “discriminate against the majority.”
An employee might be able to establish background circumstances, if, for example: (1) the person responsible for the adverse action is a member of the minority group; or (2) there is an alleged pattern of discrimination against multiple members of the majority group.
While the 6th Circuit is not alone in requiring background circumstances in so-called “reverse discrimination” cases, other circuits have rejected or not adopted such a requirement. Because of the split in the circuits, the Supreme Court agreed to resolve the issue.
Oral argument
Unlike the circuit courts, the justices on the Supreme Court appeared to be anything but split at the oral argument. To the contrary, and to quote Justice Neil Gorsuch, there appears to have been “radical agreement” that an additional requirement should not apply to prove discrimination simply because the plaintiff is alleging bias based on his or her majority status.
Three themes permeated the oral argument.
First, the background circumstances requirement is a judicial creation inconsistent with the plain text of Title VII. Title VII covers “any individual” who is discriminated against because of “race, color, religion, sex or national origin.”
Second, the background circumstances requirement is inconsistent with the McDonnell-Douglas framework for evaluating discrimination cases. It makes it difficult to make out a prima facie case of discrimination where the burden should be a relatively easy one.
Finally, even the respondent, the Ohio Department of Youth Services, conceded that it was “wrong to treat people differently” based on their sex, race, orientation, etc., in order to determine whether they have been discriminated against based on such characteristics. I don’t think this irony was lost on any of the justices.
It has been said it is a “fool’s errand” to predict what the Supreme Court will do. But the apparent “radical agreement” among the justices provides comfort to me in predicting that the court will abolish the background circumstances requirement, quite possibly unanimously.
Impact of Supreme Court’s decision
The Supreme Court’s decision will accelerate the number of discrimination claims by White and/or male and/or straight employees for two reasons.
First, it will remove an obstacle to bringing majority discrimination claims in the five circuits that have treated so-called reverse discrimination differently. Second, in all jurisdictions, the decision will shine light on the right of majority employees to bring discrimination claims.
When individuals become aware of their rights, they are more likely to exercise them. And it is my experience that many employees do not realize, at least not yet, that they can bring claims based on their majority status. If I had $100 for every time I heard “he does not fall within a protected group — he’s a White male,” I would be retired, living in Paris.
Employer actions
While Ames is not a DEI case per se, its intersection with DEI is clear. DEI programs are under legal scrutiny to ensure that they don’t discriminate in favor of minority groups at the expense of majority groups. For this reason, Ames will be but another reason for employers to continue to evaluate their DEI programs to look for, among other things, unlawful preferences or exclusions based on sex, race or other protected characteristics.
Beyond DEI, Ames provides employers with an incentive to review other policies and practices. I will focus on one area: training.
More specifically, employers should review their management training programs designed to prevent discrimination to make sure they address discrimination against majority and minority employees evenhandedly. For example, make clear that the prohibition against sex discrimination protects both women and men. If you are not explicit on this point, your training will fall short of its potential value in terms of prevention and will not be well-received if reviewed by government investigators.
Employers also will want to review their management training programs designed to prevent harassment to ensure they, too, are evenhanded. For example, when you address comments that stereotype, make sure you include at least one example of stereotyping of a majority group by a minority group. Some training programs engage in stereotyping by suggesting that only majority groups do it.
Finally, employers should review their implicit bias training programs. Some fail to mention that everyone has implicit bias and focus on implicit bias only by majorities. This dangerously and closely aligns with “woke ideology,” discriminatorily dividing the world into oppressors and oppressed based on their protected characteristics. Such training serves only to increase divisiveness rather than enhance understanding. Ditch the political framing and focus on the neuroscience of implicit bias.
