On October 4, 2024, the U.S. Supreme Court granted certiorari in Ames v. Ohio Department of Youth Services (Case No. 23-1039) to decide whether plaintiffs who are members of historically majority communities asserting “reverse discrimination” claims under Title VII must show there are “background circumstances” that support the inference that the defendant is the “unusual employer who discriminates against the majority.”

The “Background Circumstances” Requirement

At least five circuit courts have held that when “the alleged discrimination is against a member of the majority”¹ (referred to as “reverse discrimination”), Title VII claims must be supported by evidence of “background circumstances.” To satisfy this requirement, plaintiffs asserting reverse discrimination claims in these circuits must generally demonstrate that a particular employer has “reason or inclination” to discriminate against the majority group (e.g., men, whites, heterosexuals) or that there is “something fishy” about the facts.

Courts have found sufficient evidence of background circumstances where:

• The person ultimately hired for a position sought by the plaintiff was clearly less qualified than the plaintiff.
• Individuals authorized to make hiring decisions expressed significant interest in hiring members of a protected class.
• An employer has engaged in a pattern of discrimination against members of the relevant majority group.²

The background circumstances requirement, however, has not been uniformly adopted by the federal courts. Indeed, there is a significant split amongst the circuit courts concerning the application of this requirement. The Sixth, Seventh, Eighth, Tenth, and D.C. Circuits all apply the background circumstances requirement in reverse discrimination cases. The Third and Eleventh Circuits, however, expressly reject this requirement. And five circuits, including the First, Second, Fourth, Fifth, and Ninth Circuits, do not apply this requirement.

The Origins of the “Background Circumstances” Requirement

The background circumstances requirement can be traced back to a decision rendered over four decades ago by the D.C. Circuit involving a claim of racial discrimination under Title VII.³ As explained in subsequent cases, requiring plaintiffs to offer evidence of background circumstances in reverse discrimination cases was thought to be necessary because racial discrimination against whites was considered “relatively uncommon in our society.” That is, because racial discrimination against whites is not common, evidence which would typically allow for an inference of discrimination does not suffice in reverse discrimination cases. Different evidence is therefore needed to account for this reality.⁴

While the background circumstances requirement was initially developed in the context of racial discrimination, the requirement has been applied to virtually all types of reverse discrimination claims under Title VII.

Factual Background

Ames, an agency administrator and heterosexual woman, was demoted by her employer. Soon thereafter, the employer promoted a gay man to fill her former position. Based on this decision, Ames filed a lawsuit in federal court asserting a claim under Title VII for sexual orientation discrimination.

The district court granted summary judgment to the employer and Ames appealed. On appeal, the Sixth Circuit affirmed the district court’s decision, relying on the fact that Ames had failed to establish the presence of background circumstances. As the Sixth Circuit noted, Ames had not presented evidence that a gay employee made the decision to demote her or that her employer had engaged in a pattern of discrimination against heterosexuals. Without this type of evidence, the Sixth Circuit concluded that Ames could not establish a prima facie case of discrimination and that her claim was therefore properly dismissed.

In his concurring opinion, Judge Raymond Kethledge called the background circumstances requirement into question, noting that the rule imposes “different burdens on different plaintiffs based on their membership in different demographic groups.” According to Judge Kethledge, this requirement conflicts with the text of Title VII which extends its protections to “any individual.” In light of these concerns and the fact that circuit courts are sharply divided over whether to apply the background circumstances requirement, Judge Kethledge tacitly urged the Supreme Court to address this issue.

Implications for Employers and for Inclusion, Equity & Diversity Initiatives

If the Supreme Court eliminates the background circumstances requirement, it will be easier for plaintiffs from historically majority communities to pursue reverse discrimination claims. Thus, if the arguments put forth by Ames prevail, employers are likely to see an uptick in the number of such claims.

Relatedly, a ruling in favor of Ames could cause greater scrutiny of diversity initiatives. As demonstrated in recent cases where the background circumstances test applies, it is relatively common for employers to rely on that principle to defend against challenges to diversity initiatives under Title VII.⁵ If employers in those circuits are no longer able to assert this argument, it will likely become easier for plaintiffs from historically majority communities to assail DEI initiatives. Thus, while the propriety of DEI initiatives is not squarely before the Court in Ames, the potential implications – at least with regard to Title VII claims in the five circuits where the test has been recognized – are evident. Additionally, a decision is likely to play a part in challenges to diversity initiatives that arise under a separate law (42 USC § 1981, the 1866 Civil Rights Act) that has also recently provided fertile ground for challenges to DEI initiatives.⁶