Supreme Court to Address Standard for “Reverse Discrimination” Title VII Claims

On Friday, October 4, 2024, the Supreme Court granted certiorari in an appeal from the Sixth Circuit decision in Ames v. Ohio Department of Youth Services, a Title VII case involving claims of reverse sexual orientation discrimination.  Plaintiff Marlean Ames, a heterosexual woman, alleges that she was demoted and replaced by a gay man and was also denied a promotion in favor of a gay woman because of her sexual orientation.  The Sixth Circuit affirmed summary judgment in favor of the employer-defendant, holding that—to establish a prima-facie case under Title VII as a member of the majority—in addition to the “usual” showing Plaintiff was required to make an additional showing of “background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.” 87 F.4th 822, 825 (6th Cir. 2023) (citation omitted). The Court observed that such a showing is typically made with evidence that the minority group (here, gay people) made the challenged employment decision or with statistical evidence showing a pattern of discrimination by the employer against members of the majority group—neither of which Plaintiff satisfied.

On appeal, the Supreme Court will address Plaintiff’s challenge that requiring members of majority groups to satisfy the heightened “background circumstances” rule is itself discriminatory and runs afoul of Title VII.  This rule has currently been adopted by five circuits (D.C., Sixth, Seventh, Eighth, and Tenth), expressly rejected by two (Third and Eleventh), and simply not applied in the remaining circuits.

This case comes on the heels of a number of high-profile challenges to employer diversity, equity, and inclusion (“DEI”) programs and a rising number of “reverse discrimination” lawsuits.  While awaiting clarity from the Supreme Court, employers are advised to continue to ensure that all employment decisions are supported by legitimate business reasons and carefully assess DEI programs consistent with applicable law and the employer’s risk tolerance.  Crowell’s Labor & Employment Group is available to partner with employers to ensure defensibility of their DEI policies and practices.