SCOTUS Takes Up Another Case With DEI Implications

Last week, the Supreme Court accepted review of Ames v. Ohio Department of Youth Services. The court will address a circuit split regarding the standard courts apply in discrimination claims brought by majority group plaintiffs. Although the case has some connection to employer efforts to advance diversity, equity, and inclusion, employers should not anticipate a significant change in the risk around their DEI programs as a result of the anticipated decision.

Traditional and Majority Group Discrimination Claim Tests

Typically, courts use the McDonnell Douglas test for evaluating discrimination claims under Title VII. This test has some variations but generally requires that the plaintiff prove:

(1) she belongs to a protected class;

(2) she was subjected to an adverse employment action;

(3) she was qualified to perform the job in question; and

(4) her employer treated similarly situated employees outside her class more favorably.

If the plaintiff meets this burden, the defendant must show a valid, nondiscriminatory reason for its adverse employment action. If the defendant makes that showing, the plaintiff must refute that nondiscriminatory reason by showing that the employer's reason is pretextual or that discrimination was the true motive for the action.

The McDonnell Douglas test arose in cases that predominantly consisted of discrimination claims brought by individuals in minority groups. Where the plaintiff is instead a member of a majority group—i.e., a straight person, white person, or man—some courts have adopted a slightly different test. In addition to the McDonnell Douglas factors, these courts have required that a majority group plaintiff show "background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority." What those background circumstances may be can vary but would include things like a pattern or practice of discriminating against minority group members, or the fact that the decision maker was a member of the allegedly preferred minority group.

Issue Before the Court

Marlean Ames is a straight woman. She started working for the Ohio Department of Youth Services in 2004 and received a promotion in 2014. In 2017, she was assigned a new supervisor, who was a gay woman.[1] In 2019, Ames applied for a promotion and did not receive it. A few days later, the department demoted Ames back to her original role. It then selected a 25-year-old gay man for the role to which Ames had applied. A few months later, the department selected a gay woman for another leadership role.

Ames sued for discrimination based on sex and sexual orientation. In ruling on the defendant's motion for summary judgment, the district court found Ames had established the McDonnell Douglas factors, but she had failed to meet the extra "background circumstances" requirement for majority group claims. The court noted that it was the manager and director—both of whom are straight—who demoted Ames, and it observed that there was no statistical evidence of a pattern of discrimination against straight people. The court found that Ames' failure to make a showing on this factor defeated her sexual orientation discrimination claim, and the 6th Circuit affirmed. Judge Kethledge's concurrence specifically noted that "our court and others have lost their bearings in adopting [the "background circumstances"] rule" and suggested that the Supreme Court should address the issue.

In her petition to the Supreme Court, Ames highlighted Judge Kethledge's concurrence, noting that the federal circuit courts are "deeply split" on whether to apply the "background circumstances" test to majority group discrimination claims. She also argued that the test constitutes a difficult and onerous burden, and that courts that apply it are themselves engaging in discrimination against majority group plaintiffs. In her reply, Ames concluded, "This Court should grant review and hold, as it did in Bostock, Groff, and Muldrow, that Title VII means what it says. The statute protects against all discrimination, and majority-group plaintiffs need not prove more to benefit from it."

Likely Outcome and Takeaways for Employers

The Supreme Court has stated that "eliminating discrimination means eliminating all of it," and it has applied this rationale in its recent decisions to lower the adverse action standard in Muldrow v. City of St. Louis and to eliminate consideration of race in college admissions in Students for Fair Admission. Based on this precedent, the court may well eliminate the "background circumstances" test that some courts have applied to majority group discrimination claims. This would not, however, create a significant cause for concern for employers, either in general or as applied to their DEI programs.

• Not all circuits use the "background circumstances" test, and so for many employers, there will be no change in the law.
• As always, an employer's best risk mitigation strategy is to make fair and well-reasoned employment decisions, without regard to the protected classes of the affected employees. While the Ames case may contribute to an already growing swell of majority group discrimination claims, it should not fundamentally alter the risk profile of these matters.
• Changing the test for majority group discrimination claims does not change the law around DEI. Properly executed DEI programs are not unlawful, under any application of Title VII. If you have concerns about whether your DEI program is unlawful, you should undertake a legal review and risk assessment. We do not think the ultimate decision in Ames will, however, change that analysis.

The full impact of the Supreme Court's decision will depend on the language of its ruling, which we likely will not receive until next spring. In the meantime, however, employers should remain focused on ensuring that all hiring and disciplinary decisions are based on legitimate and nondiscriminatory factors.