Employment Law Blog

SCOTUS Opens the Door to “Reverse” Discrimination

Employers expecting good news from a largely pro-employer Supreme Court have just been dealt an unexpected headache. In a rare unanimous opinion, the United States Supreme Court opened the door a little further to claims of “reverse” discrimination in the case of Ames V. Ohio Department of Youth Services. The Court removed the requirement that plaintiffs claiming reverse discrimination must prove their claims with additional background circumstances that were not required for a traditional discrimination claim. 

"Reverse” discrimination claims stem from the assertion that an individual faced discrimination due to their status of not being in a protected class under Title VII. Courts required plaintiffs to show that their employer was the “unusual” employer who would discriminate against the majority and do so with “background circumstances.” Essentially, if you were alleging reverse discrimination, you must meet a higher standard of evidence.

In Ames, a heterosexual woman employed by the Ohio Department of Youth Services claims to have been passed over for a promotion in favor of a lesbian woman. She was later demoted, and the agency hired a gay man to fill her former role.

Traditionally, discrimination cases go through a burden-shifting analysis when a plaintiff alleges discrimination but has no direct evidence - plaintiffs must present evidence that they belong to a protected class, were subject to an adverse employment action, were otherwise qualified, and were treated less favorably than similarly-situated employees outside the class. If the plaintiff does this, the employer defendant then must provide a legitimate, non-discriminatory reason for the adverse action. The burden would then shift back to the plaintiff to prove that the employer’s stated reasoning is merely pretext for discrimination.

The trial court and Sixth Circuit Court of Appeals in Ames found that the plaintiff failed to complete the first step in this analysis by providing the background circumstances demonstrating that the employer would “discriminate against the majority.” 

The Supreme Court fully rejected this line of reasoning in its holding: Title VII and the burden-shifting analysis do not distinguish between majority and minority groups in their text or application. Holding a plaintiff to a higher proof standard because of their majority status would essentially run afoul of these laws by discriminating against an individual solely on the basis of their characteristics. In other words, “race, color, religion, sex, or national origin” mean exactly what they say, regardless of what category an individual falls in each of them.

Where “reverse” discrimination claims have been rarely successful, employers can now expect a rise in such claims.  Employers may also want to consider revising policies and institute training to conform with this opinion. If you’re concerned about the effect this may have on your workplace, contact your McBrayer attorney for more information.

Cynthia L. Effinger, Member with McBrayer, is located in the firm’s Louisville office. Ms. Effinger’s practice is concentrated in the areas of employment law and commercial litigation. Her employment law practice focuses on drafting employment manuals and policies, as well as addressing social media, wage and hour, non-compete agreements, and workplace discrimination. Ms. Effinger can be reached at ceffinger@mcbrayerfirm.com or (502) 327-5400.

Services may be performed by others. This article does not constitute legal advice.