DEI Under Scrutiny, Part IV: Could the ‘Background Circumstances’ Rule for Discrimination Be Primed for Supreme Court Review?

Quick Hits

• A recent Sixth Circuit case highlights questions over heightened evidentiary requirements for plaintiffs from “majority” groups (e.g., white, heterosexual, male) in a number of circuits, including at least the Sixth, Seventh, Eighth, and Tenth circuits.
• The question could have a significant impact on Title VII lawsuits brought by individual workers alleging discrimination tied to DEI initiatives.
• One judge, in a concurrence, took a dim view of the “background circumstances” rule and suggested that the Supreme Court set the rule aside.

On December 4, 2023, the Sixth Circuit in Ames v. Ohio Department of Youth Services rejected a heterosexual woman’s claims under Title VII of the Civil Rights Act of 1964 that she was discriminated against based on her sexual orientation after she was allegedly denied a promotion and demoted in favor of LGBTQ+ candidates.

The panel decision affirmed the trial court’s holding that the woman’s Title VII employment discrimination claims failed because she lacked evidence of “background circumstances” to support sex-based discrimination and that she lacked evidence of a pretext for sex discrimination.

The case highlights the issue of whether plaintiffs from majority groups must meet a higher evidentiary standard to support a discrimination claim under Title VII than plaintiffs from minority groups or other groups historically understood to have faced discrimination.

While the Sixth Circuit applied a heightened “background circumstances” rule relying upon precedent, one of the judges sharply criticized the rule’s continued use, calling it “not a gloss upon the 1964 Act, but a deep scratch across its surface.”

The case portends, and potentially tees up, Supreme Court review at a time when activist groups, investors, employees, and others are challenging DEI and environmental, social, and governance (ESG) programs aimed at remedying historical discrimination following the Supreme Court’s June 2023 decision on race-conscious admissions in higher education.

Background Circumstances Rule

The Supreme Court of the United States has recognized that Title VII protections apply with equal force to white, or “majority,” workers. However, the high court has provided little guidance as to how a plaintiff from a majority group can allege a valid discrimination claim under Title VII’s burden-shifting standards.

Given this lack of guidance, some courts in “reverse discrimination” claims apply various heightened evidentiary burdens for plaintiffs from majority groups given the historical context of the 1964 Civil Rights Act and require majority plaintiffs to show more evidence of discrimination.

In 1981, the United States Court of Appeals for the D.C. Circuit in Parker v. Baltimore & Ohio Railroad became the first circuit to adopt the “background circumstances” rule, under which plaintiffs from majority groups must show “background circumstances support the suspicion that the defendant is that unusual employer who discriminates against the majority.” The Parker court also declined to hold that lawful affirmative action plans create an inference of discrimination against white plaintiffs.

Since then, four more circuits, including the Sixth Circuit, have adopted the “background circumstances” rule. Two other circuits have expressly rejected the “background circumstances” rule, and five other circuits do not apply it, treating discrimination claims from majority groups similarly to claims from plaintiffs in other groups.

Ames v. Ohio Department of Youth Services

In Ames, former Ohio Department of Youth Services employee Marlean Ames asserted Title VII discrimination claims alleging that she was discriminated against based on her sexual orientation. Ames, who identifies as “heterosexual,” started working for the department in 2004, and in 2014 she was promoted to the position of the department’s administrator of Prison Rape Elimination Act (PREA).

In 2017, Ames was assigned to a new supervisor, who according to court documents, identifies as “gay.” In 2019, Ames interviewed to be the department’s bureau chief of quality but was not chosen for the job. According to the decision, after Ames’s interview, her supervisor suggested that she retire. Four days later, a higher supervisor and representative for human resources met with Ames to inform her that she had been discharged as PREA administrator and had the option to return to her prior job at a pay cut.

According to the decision, the department then hired a “gay man” for the position of PREA administrator, and later that year hired a “gay woman” as the bureau chief of quality.

A Sixth Circuit panel held that Ames did not meet her burden under the “background circumstances” rule, noting that plaintiffs usually make such a “showing with evidence that a member of the relevant minority group … made the employment decision at issue” or by using “statistical evidence showing a pattern of discrimination by the employer against members of the majority group.”

The panel found she made neither showing because she had alleged that the ultimate decision for hiring a new PREA administrator was made by a higher supervisor and human resources representative, not her immediate supervisor. The court further ruled that her “only evidence of a pattern of discrimination against heterosexuals [was] her own demotion and denial” of a promotion, which is not enough to establish “a pattern of discrimination.”

The panel further rejected Ames’s argument that a jury could find she was discriminated against based on sex because the department’s shifting justifications for the reason she was demoted were not enough to establish a pretext for discrimination.

Reverse Discrimination and DEI

The Sixth Circuit’s decision in Ames comes months after the Supreme Court in June 2023 struck down race-conscious admissions in higher education as violating the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution. The Supreme Court case has raised questions about whether programs to increase diversity in other contexts, including employment, constitute unlawful discrimination.

The Ames case presents a situation in which an employee primarily alleges that she was passed over for a promotion and pushed out because she does not identify as LGBTQ+. In 2020, the Supreme Court recognized sexual orientation as a basis for unlawful discrimination under Title VII as a form of discrimination on the basis of “sex.” But that case focused on the question of whether an employer could fire an employee “merely for being gay or transgender.”

The Sixth Circuit’s ruling shows how the “background circumstances” rule may serve as an obstacle for a plaintiff asserting a reverse discrimination claim. The Sixth Circuit suggested that a member of a majority group needs to supply evidence either that members of a minority group were the sole decision-makers in the alleged adverse employment action or statistical evidence showing a pattern of discrimination.

But despite the Sixth Circuit panel’s decision being labeled as “per curiam,” Judge Raymond Kethledge argued against the continued use of the “background circumstances” rule. In a concurring opinion, he argued that courts have construed Title VII’s bar on discrimination to “impose different burdens on different plaintiffs based on their membership in different demographic groups,” and suggested the Supreme Court may need to address the issue.

“Respectfully, our court and others have lost their bearings in adopting this rule. If the statute had prescribed this rule expressly, we would subject it to strict scrutiny (at least in cases where plaintiffs are treated less favorably because of their race),” Judge Kethledge stated.

Looking Ahead

If the high court accepts review of the “background circumstances” rule or other standards setting higher burdens for plaintiffs from majority groups in a future case, it is reasonable to anticipate that the Court will overrule such standards in light of its reasoning in the race-conscious college admissions case and its current ideological makeup. As with the anticipated ruling in City of St. Louis v. Muldrow, which was discussed in part three of our “DEI Under Scrutiny” series, such a ruling could open the door to more claims alleging DEI and ESG efforts to promote diversity based on any “protected” status, actually discriminate against members of majority groups.

Given the context of this evolving area of law, private employers may want to review their current DEI and ESG policies, programs, or initiatives and the goals of those efforts with respect to their risk tolerance.

For more information on the implications of the Supreme Court’s affirmative action decisions for DEI initiatives, together with related risk considerations for employers, please see Ogletree Deakins’ “DEI Under Scrutiny” series, which examines the DEI legal landscape in the wake of the Supreme Court’s decision on race-conscious admissions in higher education.

Part one of the series examines reasons to perform risk assessments of DEI programs given the current legal landscape. Part two of the series focuses on additional considerations related to employers’ environmental, social, and governance (ESG) commitments. Part three examines the Supreme Court’s consideration of a case raising the issue of whether Title VII requires plaintiffs to show they were injured by an employer’s alleged discrimination.

Ogletree Deakins’ DEI Task Force—a multidisciplinary team of lawyers from our Diversity and Inclusion, Environmental, Social, and Governance (ESG), Litigation, OFCCP Compliance, Government Contracting, and Reporting, and Pay Equity practice groups—counsels employers on advancing lawful DEI and ESG efforts.

Ogletree Deakins will continue to monitor developments and will provide updates on the Diversity and Inclusion and Employment Law blogs.

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