Supreme Court to consider reverse sexual orientation discrimination lawsuit

In a case with implications for employment law, the Supreme Court will hear arguments in late February in a lawsuit brought by a heterosexual woman who claims she was discriminated against based on her sexual orientation.

In Ames v. Ohio Department of Youth Services, the justices will consider tests used by the courts in discrimination cases that require an extra burden of proof on people who belong to a majority class bringing a discrimination claim.

According to her petition to the Supreme Court, Marlean Ames was seeking a jury trial to consider her claims against her employer, the Ohio Department of Youth Services. Ames started at the department as an executive secretary and eventually became a program administrator. After 30 years of service at the department, she interviewed with her supervisor, who was a gay woman, and an assistant director for a position as bureau chief. The department declined to hire her for that position and offered Ames a previous role at a lower pay rate, which she accepted. A 25-year-old gay man was hired to replace Ames as a program administrator, and a few month later, a gay woman was hired for the role of bureau chief.

Ames filed a complaint with the Equal Employment Opportunity Commission under Title VII of the Civil Rights Act of 1964, alleging discrimination based on sexual orientation and sex. The EEOC concluded Ames could file a lawsuit in a federal district court.

The Southern District Court of Ohio decided Ames could not proceed with the case based on the level of proof required by the “background circumstances rule.”

A framework called McDonnell Douglas burden shifting is typically used in an employment discrimination case related to alleged violations of Title VII. Under this framework, in order to show a prima facie case of intentional discrimination, a plaintiff shows “that he or she is a member of a particular protected group, was eligible for the recipient’s program, activity or service, and was not accepted into that program or otherwise treated in an adverse manner, and that an individual who was similarly situated with respect to qualifications, but was not in the plaintiff’s protected group was given better treatment.”  

But some federal circuits require an additional test called the “background circumstances” rule for majority plaintiffs who need to prove the “defendant is that unusual employer who discriminates against the majority,” otherwise known as “reverse discrimination.” Under the rule, majority plaintiffs typically make that showing by pointing to a pattern of discrimination.

The background circumstances rule dates back to a 1981 decision in the D.C. Circuit Court, Parker v. Baltimore & Ohio Railroad Company, where a white man seeking to become a locomotive fireman claimed hiring preferences were afforded to Black and female applicants. Five federal circuits, including the Sixth Circuit, require the background circumstances rule in majority discrimination claims.

On appeal to the Sixth Circuit, a three-judge panel upheld the decision to dismiss Ames’ claim. “Whether Ames made the necessary showing of ‘background circumstances’ is the principal issue here. For otherwise Ames’s prima-facie case was easy to make: her claim is based on sexual orientation, which is a protected ground under Title VII,” the judges wrote.

However, the appeals court said the background circumstances test required Ames to present “evidence that a member of the relevant minority group (here, gay people) made the employment decision at issue, or with statistical evidence showing a pattern of discrimination by the employer against members of the majority group.”

The appeals court then decided against Ames on her sexual orientation discrimination claim. First, they found that she has been terminated as administrator by two heterosexual people, who were also the decisionmakers for hiring the bureau chief position. “Second, Ames’s only evidence of a pattern of discrimination against heterosexuals is her own demotion and the denial of the Bureau Chief position. . . Under our caselaw, however, a plaintiff cannot point to her own experience to establish a pattern of discrimination.”

Circuit Judge Raymond Kethledge concurred with the decision while raising questions about the background circumstances precedent. “The ‘background circumstances’ rule is not a gloss upon the 1964 [Civil Rights Act], but a deep scratch across its surface,” he noted. Judge Kethledge pointed out that five federal circuits apply the rule, two others have rejected the test outright, while five others do not apply the rule in similar cases. “Nearly every circuit has addressed this issue one way or another. Perhaps the Supreme Court will soon do so as well,” he concluded.

The Supreme Court accepted Ames’ appeal on Oct. 4, 2024, limited to the question of “Whether, in addition to pleading the other elements of Title VII, a majority-group plaintiff must show ‘background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.’”

In its most recent Supreme Court brief, the Ohio attorney general’s office believes two prior Supreme Court decisions regarding Title VII discrimination claims, Furnco Constr. Corp. v. Waters (1978) and Texas Dept. of Community Affairs v. Burdine (1981), support the background circumstances test:

“The issue in this case is not novel. The Court made clear as early as 1978 that plaintiffs who bring a Title VII claim must make a prima facie case of discrimination by pointing to facts that, ‘if otherwise unexplained,’ suggest that an employment decision was ‘more likely than not based on the consideration of impermissible factors,’” the state argues. “This case calls for little more than a straightforward application of Furnco and Burdine.”

The counsel for Ames in their most recent brief discounted the applicability of Furnco and Burdine to Ames’ case and criticized the Sixth Circuit decision’s reliance on the background circumstances test: “In the Sixth Circuit, on the other hand, judges must actually treat plaintiffs differently, by first separating them into majority and minority groups, and then imposing a ‘background circumstances’ requirement on the former but not the latter,” the brief argues. “In other words, to enforce ‘Title VII’s broad rule of workplace equality,’ courts must apply the law unequally,” it concludes.

Arguments will be held on Wednesday, Feb. 26, 2025, with live audio available on the Court’s website at www.supremecourt.gov.

Scott Bomboy is the editor in chief of the National Constitution Center.