The U.S. Supreme Court just agreed to hear a case out of the Sixth Circuit (which covers Ohio) regarding the heightened proof required for discrimination against the majority. In other words, a straight woman in Ohio sued her employer when the employer showed favoritism to gay employees in terms of promotions and hiring decisions. But the Sixth Circuit requires additional proof for employees in the majority (i.e., white employees suing over favoritism to black employees, straight employees suing over favoritism to gay employees) that it does not otherwise require for traditional claims brought by employees in the minority.
This heightened proof requires the employee to prove “background circumstances,” in addition to the standard elements of a discrimination claim. Background circumstances would be either that the decisionmaker is in the minority (black or gay, for instance) or the employee bringing the lawsuit can show statistical data that would establish a pattern of discrimination towards the white or straight employees.
Sixth Circuit Applies Heightened Proof for Discrimination Against the Majority
In Ames v. Ohio Department of Youth Services, 87 F.4th 822 (6th Cir. 2023), Ms. Ames (who is straight) began reporting to a gay supervisor. Ms. Ames applied for a promotion, but the job was awarded to a gay employee who had started working several years after Ms. Ames, lacked the minimum qualifications for the role, and had not even applied for the job. Later, she was demoted and replaced by a gay man who had less time with the company than Ms. Ames did and who had received the promotion in violation of the department’s own rules. Normally, these facts would be sufficient for Ms. Ames to get past summary judgment (where a judge determines if there’s enough evidence for the case to proceed to trial) and present her case to a jury. However, this is where “background circumstances” reared its head.
Under the Sixth Circuit’s prior court decisions (called “precedent”), because Ms. Ames was in the majority group (a heterosexual woman), she had to overcome the added obstacle of showing that additional background circumstances support the position that the Department was the unusual employer who discriminates against the majority. And Ms. Ames could not point to her own specific circumstances alone to show this illegal preference by the employer. She had to show that a gay person had made the decision or that there was statistical evidence of this discrimination happening across the board. She could not do that in this case. So the Sixth Circuit dismissed her case. And last week, the Supreme Court agreed to get involved.
Why the U.S. Supreme Court Got Involved
The Court likely has two reasons for reviewing the Sixth Circuit’s decision. One is that the “background circumstances” requirement is not written anywhere in the text of Title VII of the Civil Rights Act, which prohibits discrimination against any person on the basis of race, sex, religion, or national origin, period. “Background circumstances” is simply a judge-created requirement that makes it more difficult for some employees to prove discrimination claims than other employees. In other words, the requirement itself discriminates on the basis of a person’s race or sexual orientation.
Second, the federal courts across the country are divided on this rule. About half of the circuits apply the rule, several refuse to apply the rule, and a handful decline to take a position on the rule at all. South Carolina falls into the Fourth Circuit Court of Appeals, which is one of the circuits that takes no position on the rule. As a result, there’s a confusion across the circuits (called a circuit split) and even within a single district, where some judges can rule one way and some another. The Supreme Court often steps in to resolve a circuit split, which helps explains why they want to review this decision. But in additional, several of the justices are self-described “textualists” who would take objection to courts imposing judge-made requirements to show heightened proof for discrimination against the majority when Title VII itself does not say that anywhere in the text.
Takeaways for South Carolina Employees
Given these factors, I would anticipate that the Court ultimately sides with Ms. Ames and strikes down the “background circumstances” requirement for Title VII claims. We’ll get a better sense of which way the Court is leaning once oral arguments take place, which is still TBD. The Court will likely issue a decision in the spring, so we’ll know for certain by then.
If you’ve been discriminated against on the basis of age, race, sex, religion, national origin, or disability, you should reached out to a South Carolina employment lawyer to discuss your case in more detail. Ultimately, discrimination is discrimination, no matter who it’s against. Title VII is designed and intended to allow people to compete for jobs based solely on merit, nothing more. If a company refuses to abide by the law, well, that’s where I come in.