The U.S. Supreme Court recently resolved a difference in opinions among the lower courts regarding how to weigh discrimination claims that are made by employees who are members of a majority group. In Ames v. Ohio Department of Youth Services, the plaintiff was a straight woman who alleged that she was discriminated against because of her sexual orientation. The Court unanimously held that members of a majority group do not need to meet a heightened evidentiary standard to prove that they were discriminated against under Title VII, the federal civil rights statute that applies to employers with 15 or more employees. The 9th Circuit (which includes Washington State) is among the jurisdictions that did not previously apply this requirement; however, this decision is important because it means that there will be uniform treatment of federal discrimination claims throughout the U.S.
Courts typically use a multistep framework to evaluate claims arising under Title VII that rely on circumstantial evidence. The first step in this framework requires the plaintiff to show that their employer acted with a discriminatory motive. Once this step is achieved, the burden then shifts to the employer to provide a legitimate, nondiscriminatory reason for the action. If the employer meets that burden, the burden shifts back to the employee to show that the employer’s stated justification was “in fact pretext” for discrimination.
However, jurisdictions had been split over whether to impose additional requirements under the first step of the framework if the complainant was a member of a majority group. Some circuits had held that to meet the first step of the multistep framework, a plaintiff in a majority group must also show “background circumstances,” which are “circumstances surrounding an employment decision that, if otherwise unexplained, suggest that the decision was because of a protected characteristic.” It is this extra requirement for majority group members that the Court held did not square with Title VII. With this aspect of the framework effectively eliminated, the Ames decision applies a uniform approach to evidentiary productions that focuses on the individual employee more than the group of which that employee is a member.
In his concurrence, Justice Thomas, who was joined by Justice Gorsuch, pointed out that the entirety of the framework for analyzing circumstantial evidence of discrimination can be up for consideration in the future. He warned that employer initiatives through Diversity, Equity, and Inclusion (DEI) programs have led to overt discrimination against members in majority groups and hopes that the Ames decision can remediate this concern.
Implications for Employers
- Removing the additional evidentiary requirements for those in majority groups could lead to an increase in litigation against employers. Although the standard remains the same in the 9th Circuit, with national attention on Ames, plaintiffs in majority groups may become more aware that they can bring discrimination actions under Title VII.
- There is a potential for an increased number of challenges to DEI initiatives with a simplified litigation pathway for majority group employees. For example, in a press release celebrating the Ames decision, the EEOC stated, “Likewise, employees who have experienced DEI-discrimination at work should be encouraged by the Court’s ruling.”
- The concurrence in Ames points to additional changes that could be on the horizon altering the landscape for employers once again.
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This summary is a broad overview of a complex topic, and it does not constitute legal advice. If you have any questions, feel free to contact Karen Sutherland ([email protected]), or any other attorney of the Ogden Murphy Wallace, P.L.L.C. Labor and Employment Group.
Written by OMW Summer Associate Julia Ely, in collaboration with OMW Member Karen Sutherland.
