Supreme Court Sides with Heterosexual Woman: Majority Plaintiffs and Minority Group Plaintiffs Alike Need the Same Evidence of Discrimination

Case Background

In 2004, Ames joined the Ohio Department of Youth Services, which operates Ohio’s juvenile correctional system.  Ames was a program administrator when, in 2019, she applied and interviewed for a new management position, but the agency hired a different candidate, a lesbian woman, for the role.  Shortly thereafter, Ames “accepted a demotion” to the secretarial position she held when she first joined the agency in 2004.  A gay man was appointed to fill the program administrator vacancy created by her demotion.

Ames then filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) alleging age, gender and sexual orientation discrimination.  The EEOC found probable cause to believe that Ames was discriminated against, but declined to bring suit on Ames’ behalf.  Ames filed suit against her former employer under (among other statutes) Title VII.  Only her claim of gender and sexual orientation discrimination survived the defendant’s motion to dismiss.  Ultimately, the district court dismissed her discrimination claim at the summary judgment stage due to Ames’ inability to satisfy the “background circumstances” requirement.  The Sixth Circuit affirmed this ruling.

What was the Background Circumstances Evidentiary Requirement?

The “background circumstances” burden imposed on Ames by the Sixth Circuit required her – and other so-called “majority group” plaintiffs, including heterosexuals, to not only make a prima facie case under Title VII, but also to show in addition, “background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority” (as described in the Sixth Circuit opinion).  The Sixth Circuit noted that Ames was demoted by heterosexual supervisors and could not point to the experiences of any other heterosexual employees to establish a pattern of discrimination.

By contrast, had Ames been a member of a “minority group” in the Sixth Circuit, she would have been required only to show that she had a prima facie case – a requirement the Circuit described as “easy” for Ames – meaning that she “applied for an available position for which [she was] qualified, but [was] rejected under circumstances which give rise to an inference of unlawful discrimination.”

In overturning the “background circumstances” requirement, the Supreme Court said that  it amounted to an additional burden to the proof required by “majority-group” plaintiffs to bring a Title VII discrimination claim, “such as statistical proof or information about the relevant decisionmaker’s protected traits—that would not otherwise be required to make out a prima facie case.”  In the opinion, Justice Jackson reasoned, “By establishing the same protections for every ‘individual’—without regard to that individual’s membership in a minority or majority group—Congress left no room [in Title VII] for courts to impose special requirements on majority-group plaintiffs alone.”

Outcome Anticipated

Legal commentators anticipated that the “background circumstances” evidentiary requirement would be overturned—in part because the EEOC has long taken the position that Title VII is “colorblind, group-neutral”—as described by a statement issued by current EEOC Acting Chair Andrea Lucas following the Ames decision.  Indeed, the EEOC had previously filed an amicus curiae brief supporting what Lucas described as the “position that the Supreme Court ultimately adopted this week.”

EEOC Warns Employers

EEOC Chairperson Lucas’s statement instructs “thoughtful employers” to “take note and review their policies to ensure compliance with Title VII.”  Lucas said that “race or sex discrimination … may arise from … employers’ DEI initiatives” and that the EEOC is committed to “dispelling the notion that only the ‘right sort of’ plaintiff is protected by Title VII.”

*Feliz Smith is a summer associate in our Houston office.