The U.S. Supreme Court (SCOTUS) recently accepted review of Ames v. Ohio Department of Youth Services, a case from the Sixth Circuit Court of Appeals. The case deals with a discrimination claim brought by a plaintiff who is in a majority group (i.e., white, male, or heterosexual) and whether a different standard should be required to plead these claims, which are commonly called reverse discrimination claims.
The standard for discrimination claims is typically the McDonnell Douglas test, which generally requires a plaintiff to prove the following: 1) they belong to a protected class; 2) they were subjected to an adverse employment action; 3) they were qualified for the job; and 4) their employer treated similarly situated employees outside the class more favorably.
There is a circuit court split over whether to solely apply the McDonnell Douglas test or to add another requirement to reverse discrimination claims. The Sixth Circuit Court of Appeals in Ames v. Ohio Department of Youth Services required the plaintiff to meet the McDonnell Douglas test and show “background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.” A plaintiff can show this by doing things such as providing “statistical evidence showing a pattern of discrimination by the employer against the members of the majority group.”
While some other courts have also used the “background circumstances” test, others have applied only the McDonnell Douglas test to reverse discrimination claims.
If SCOTUS decides the standard for reverse discrimination claims requires meeting the McDonnell Douglas test and showing “background circumstances,” this will be a higher standard than what is required for discrimination claims from plaintiffs in minority groups. While we can’t know what the Court will decide, in a 2023 ruling, Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, SCOTUS said that “eliminating racial discrimination means eliminating all of it,” making it clear that the law applies equally to all individuals.
The case will be heard during SCOTUS’s 2024- 25 term, which started on October 7, 2024, and ends on October 5, 2025. Employers Council will update members once a decision is issued.
Regardless of the outcome of the Supreme Court decision, employers should not make employment decisions based on protected statuses and should treat employees in a manner that is fair and consistent with their policies and practices. Consulting and Enterprise members can contact us with questions. All members can access our whitepapers on discrimination, specifically sex/gender discrimination, race discrimination, and religious discrimination.
Erika Paulus is an attorney for Employers Council.