Majority Groups May Soon See Easier Path in Discrimination Cases

The US Supreme Court is hearing oral arguments Feb. 26 in a case where they may decide to toss aside a heightened standard of proof used to address disparate treatment claims for majority-group employees under Title VII.

Title VII of the Civil Rights Act of 1964 protects all workers from discrimination in the workplace. The question before the Supreme Court is a narrow question about a standard of proof that has been applied by some federal courts since McDonald v. Santa Fe Trail Transportation Co. was handed down in 1976.

For decades, some federal appellate courts have required majority group plaintiffs (who are often but not always, White employees in race discrimination cases, or male employees in sex discrimination cases), to demonstrate “background circumstances” when establishing a prima facie case of employment discrimination under the seminal case of McDonnell Douglas Corp. v. Green. Others have either rejected the requirement or otherwise remained silent about its existence. Ultimately, this boils down to a higher evidentiary burden that is imposed upon certain groups but not others.

Marlean Ames, in the case before the Supreme Court, is a heterosexual woman who alleges she has was passed up for a promotion based on her sexual orientation, among other things. According to the US Court of Appeals for the Sixth Circuit, she satisfied the usual requirements of a prima facie case, but she failed to overcome the more rigorous “background circumstances” standard imposed upon majority-group members. For that reason alone, her case was doomed. The Supreme Court is thus tasked with deciding whether the “background circumstances” requirement should continue to exist at all.

It’s likely that members of the court, across the ideological spectrum, will be highly skeptical of the “background circumstances” requirement as a doctrine under Title VII for textual and precedential reasons. First, the “background circumstances” test is a judicially-created evidentiary standard first articulated by the US Court of Appeals for the Dsitrict of Columbia Circuit in 1981 when it decided Parker v. Baltimore & Ohio Railroad. The test appears nowhere within Title VII’s text, and Title VII itself doesn’t attempt to create differing evidentiary standards for members of discrete racial groups. In and of itself, the standard’s lack of a textual connection will likely cause alarm for most, if not all, of the justices during oral argument.

Second, the doctrine is in tension with both McDonnell Douglas and Santa Fe. Although McDonnell Douglas itself created an evidentiary standard for litigants, it never created a different test for other racial groups pursuing employment discrimination claims. And Santa Fe, a seminal opinion by Justice Thurgood Marshall, went so far as to say that Title VII protected Whites using the “same standards” as those for Blacks.

Neither litigant in Ames is asking the high court to overturn either McDonnell Douglas or Santa Fe. Thus, if those decisions are taken as settled law by the justices devoted to precedence, it’s hard to fathom how the “background circumstances” test survives.

Particularly given the Supreme Court’s recent decisions on affirmative action, the court will likely take this opportunity to emphasize that Title VII protects all individuals using the same burdens of proof, without regard to any protected classifications, and employs a single standard across the board. Those defending employers will potentially see an increase in viable claims from majority-group employees, including Whites, because employers can no longer defend themselves due to a failure of “background circumstances.”

On the other side, those representing majority-group employees may find it easier to pursue claims without being subjected to an elevated standard of proof at the prima facie stage, although there are still several other steps a plaintiff must satisfy to ultimately win their case. Thus, there simply might be an increase in a particular type of claim brought under Title VII, and not a floodgate of new litigation due to the creation of a new Title VII claim.

Ultimately, should the Supreme Court reject the “background circumstances” test, there won’t be a serious jolt to employment discrimination jurisprudence. Instead, parties will likely litigate under the already established burdens of proof outlined in McDonnell Douglas and continue as they have since the issuance of that decision in 1973.

The case is Ames v. Ohio Department of Youth Services, U.S., No. 23-1039, to be argued 2/26/25.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Josh Myers is a senior litigation associate at Nelson Mullins Riley & Scarborough and focuses on commercial, labor and employment, and regulatory matters.

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