‘Ames’ decision eases path for reverse bias claims

• 4th Circuit rules in Ames v. N.C. Dep’t of Revenue, favoring plaintiff.

• Decision lowers the bar for reverse discrimination claims.

• The court ruled Title VII doesn’t impose a higher burden for white workers.

• The ruling clarifies reverse bias standards in the 4th Circuit.

Earlier this term, the U.S. Supreme Court unanimously decided that the 6th U.S. Circuit Court of Appeals had made it too difficult for a heterosexual woman’s discrimination claim to survive summary judgment.

Included in that decision is a concurrence by Justice Clarence Thomas, which Justice Neil M. Gorsuch joined, that has sparked some conversation among local employment attorneys.

In Ames v. Ohio Dept. of Youth Services, petitioner Marlean Ames argued that she was passed over for a new management position for a gay woman. She claims she was then demoted, only to have a gay man hired to do her old job.

A U.S. district court judge granted summary judgment to her employer, the Ohio Department of Youth Services, because the plaintiff had failed to meet the added requirement several federal circuits had grafted onto the traditional burden-shifting framework for evaluating disparate treatment claims first articulated by the Supreme Court in the 1973 landmark decision McDonnell Douglas Corp. v. Green.

That requirement, part of the prima facie showing a plaintiff must make under the first stage of McDonnell Douglas, requires only certain plaintiffs — those who are white or straight, for example — to show “background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.”

A unanimous Supreme Court ruled that such an added burden has no basis in the text of Title VII or the court’s precedents.

“As a textual matter, Title VII’s disparate-treatment provision draws no distinctions between majority-group plaintiffs and minority-group plaintiffs,” Justice Ketanji Brown Jackson wrote for the court.

The court also cited the 2020 decision in Bostock v. Clayton County, stating that the “law’s focus on individuals rather than groups [is] anything but academic.”

In addition to flouting the “basic principle” that Title VII does not vary based on whether the plaintiff is a member of a majority group, the “background circumstances” rule also “ignores our instruction to avoid inflexible applications of McDonnell Douglas‘ first prong,” Brown Jackson added.

“The ‘background circumstances’ rule disregards this admonition by uniformly subjecting all majority-group plaintiffs to the same, highly specific evidentiary standard in every case,” she wrote.

Ohio argued that the “background circumstances” rule was not a heightened standard, but “just another way of asking whether the circumstances surrounding an employment decision, if otherwise unexplained, suggest that the decision was because of a protected characteristic.”

But that contention was directly at odds with the 6th Circuit’s description of the rule and its application in this case, the court noted.

While Thomas joined the majority opinion in full, he concurred “to highlight the problems that arise when judges create atextual legal rules and frameworks.” Thomas wrote not just talking about the “background circumstances” rule but the McDonnell Douglas framework itself, suggesting that in the future, he would be willing to consider whether it is a “workable and useful evidentiary tool” and that, in the meantime, litigants should consider themselves free to proceed without it.

Statewide impact

Several Virginia attorneys said Ames is an important recent decision in the employment law space.

“Ames is definitely an important employment law decision, if nothing else because the U.S. Supreme court spoke with one voice in this unanimous decision, leaving no ambiguity for Virginia employers and the courts that they will not tolerate treating any groups differently when enforcing discrimination laws,” McLean employment attorney Declan Leonard wrote.

While many circuits joined the 6th Circuit in adopting the heightened “background circumstances” rule, the 4th Circuit never adopted the test struck down by the U.S. Supreme Court in Ames.

Leonard said because of this, he does not anticipate much change in Virginia courts seeing more reverse discrimination litigation.

“I would not expect this decision to result in a groundswell of reverse discrimination litigation in Virginia, because unlike some other jurisdictions, the Fourth Circuit never adopted this heightened ‘background circumstances’ test that was struck down here,” Leonard said.

Washington, D.C. employment attorney Ryan Bates echoed a similar sentiment.

“While I don’t expect that Ames will open the floodgates of discrimination claims from majority-group plaintiffs, I wouldn’t be surprised if we see a slight uptick in discrimination cases from individuals in majority groups,” Bates said.

Highlighting that the Fourth Circuit never addressed the ‘background circumstances’ rule, Bates said the void created splits in the lower courts. “Given the absence of binding precedent, district courts within the Fourth Circuit have both applied and rejected the ‘background circumstances’ requirement,” Bates said.

Arlington-based attorney Jeff Jennings with the Pacific Legal Foundation filed an amicus brief, along with co-counsel Chris Barnewolt, asking the country’s highest court to reject the background circumstances rule.

“Over the years, a circuit split had emerged with some courts concocting the ‘background circumstances rule’ that required majority-group employees to provide more evidence of discrimination than employees from minority groups,” Jennings and Barnewolt said via email.

In its brief, the Pacific Legal Foundation, which defends persons from government overreach and abuse, argued the rule departed from Title VII’s text and was unconstitutional under the Equal Protection Clause.

Jennings and Barnewolt said the Ames decision would bring Title VII back to “the commonsense understanding… that it – and other civil rights laws – are not just for people who are in one group or another.”

Thomas’ concurrence

Of more interest to attorneys was Thomas’ concurrence, which invited the demise of McDonnell Douglas. Like the “background circumstances” rule, Thomas noted that McDonnell Douglas itself is a “judge-made rule” with no basis in the text of Title VII.

The McDonnell Douglas framework was originally developed for courts to use in bench trials. Its extension into the summary judgment context has caused “significant confusion” and “troubling outcomes on the ground,” Thomas noted in a dissent earlier this year.

Thomas said his first concern with McDonnell Douglas is that it is incompatible with the summary judgment standard set forth in Federal Rule of Civil Procedure 56.

“Namely, the framework does not speak in terms of ‘genuine dispute[s]’ regarding the facts” but instead speaks in terms of “proving” facts “by the preponderance of the evidence,” Thomas noted.

Other problems that Thomas has with McDonnell Douglas are that it “fails to capture all the ways a plaintiff can prove a Title VII claim” and “requires courts to draw and maintain an artificial distinction between direct and circumstantial evidence.”

“That the McDonnell Douglas framework ‘has befuddled’ courts ‘[s]ince its inception is yet another reason to question it,” Thomas added.

Despite the concurring opinion, Bates said that McDonnell Douglas is not going away anytime soon.

“Short of that, Justice Thomas took the opportunity to remind advocates that the Supreme Court has ‘never required’ the use of McDonnell Douglas and suggests that courts and litigants ‘apply[] the straightforward text of Rule 56,’” Bates said.

Leonard noted that Thomas had sharp criticism in urging to scrap the McDonnell Douglas framework.

“He minced no words by calling this ‘confusing’ framework used by courts to decide discrimination cases on summary judgment as ‘made out of whole cloth’ by judges with no basis in the underlying discrimination laws passed by Congress,” Leonard said.

However, Leonard said that until a majority opinion of the U.S. Supreme Court echoes Thomas’ sentiment, “McDonnell Douglas will still dominate the landscape of employment discrimination law.”

Jennings and Barnewolt said the concurrence mirrored some of the arguments brought forward in their amicus brief that the ‘background circumstances’ rule violated equal protection.

“The court’s decision leaves the McDonnell Douglas burden shifting framework in place — for now — but employers will no longer be able to defeat an inference of discrimination by claiming that it’s unusual for an employer to discriminate against a majority-group plaintiff,” Jennings and Barnewolt said.

Looking ahead

“Ames is important because it’s another Supreme Court case saying that courts need to apply the law as written and avoid judicially-created doctrines that have little-to-no basis in the statutory text,” Bates said, saying the opinion now clarifies that plaintiffs from majority groups do not have a heightened burden for establishing discrimination claims.

Leonard said the decision should not be dismissed as “more of the current war on DEI,” noting that one of the court’s liberal justices authored the Ames decision.

“Rather, the better way to view this decision is that it was a common sense leveling of the playing field in keeping with the plain language of the federal discrimination laws that all individuals, not just some, are entitled to a workplace free of discrimination,” Leonard said.

Leonard also said employers should look at some of their policies in the aftermath of Ames.

“Employers in Virginia should check their handbooks and other policies to make sure there is no language suggesting that discrimination laws will only be applied against minorities,” Leonard said.

Jennings and Barnewolt agreed that employers should evaluate, as employees in a majority group now have an easier time lodging challenges to alleged discriminatory policies.

“Employers should review DEI and affirmative action programs to ensure that they do not discriminate in the terms of employment against majority-group employees,” Jennings and Barnewolt said.

Bates also said this opinion addresses “a common misconception that ‘reverse-discrimination’ claims are not recognized under the law.”

“This is certainly not the case and Ames makes it clear that plaintiffs from these majority groups bear no additional burden to establish discrimination claims,” Bates said.