Marlean Ames sued the Ohio Department of Youth Services under Title VII of the Civil Rights Act of 1964. Ms. Ames, a heterosexual woman, alleged discrimination on the basis of sexual orientation arising out of the Department’s decisions to select a gay employee for a promotion and to demote her.

Ms. Ames asserted a claim for sexual orientation “reverse discrimination,” arguing that she was discriminated against because she is not gay. The U.S. Court of Appeals for the Sixth Circuit upheld the dismissal of her case based on precedent requiring a plaintiff in a reverse discrimination claim to satisfy a higher burden than a “traditional” discrimination claimant.

In most of the federal circuits, the burden of proof on a “majority” group plaintiff alleging Title VII discrimination is exactly the same as for a member of a “minority” group. Plaintiffs typically establish a prima facie case of discrimination by showing (1) they are a member of a protected class, (2) they suffered an adverse employment action, and (3) the adverse employment action was based on the employees’ membership in that protected class.

However, in the Sixth Circuit (as well as in Seventh, Eighth, and Tenth circuits) plaintiffs alleging reverse discrimination must also prove “background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.”

Ms. Ames contends that Title VII standards should be applied consistently to all plaintiffs, regardless of whether the plaintiff is a member of the “minority” or “majority” group, and that requiring a member of the majority group to show special or additional “background circumstances” is not consistent with Title VII.   

During last week’s Supreme Court oral argument, attorneys for Ms. Ames and for the Department agreed that, if the “background circumstances” standard creates an additional burden on reverse discrimination plaintiffs, it would be inappropriate. As Justice Neil Gorsuch noted, the parties were “in radical agreement” on that point. However, the parties disagree on whether the “background circumstances” standard creates an additional burden or is simply part of the prima facie case of discrimination that all plaintiffs must satisfy. Justice Amy Coney Barrett questioned whether eliminating the “background circumstances” test would “throw the door open” to a slew of reverse discrimination lawsuits, but Ms. Ames’s attorney responded that the jurisdictions without this requirement have not experienced a floodgates effect.

Based on the oral argument, it appears that the Court will rule that a plaintiff alleging reverse discrimination has no additional proof requirements and that the “background circumstances” requirement has no basis or support in the text of Title VII.

We will follow up when the Court issues its decision.