Recent changing perspectives in employment law have brought other topics to the forefront of employment litigation, and reverse discrimination is one of those topics.
Reverse Discrimination
Reverse discrimination refers to the unfair treatment of members of a majority or dominant group, often resulting from policies or actions intended to remedy past discrimination against minority or historically disadvantaged groups. This type of discrimination is frequently associated with affirmative action programs.
Reverse discrimination cases often arise in contexts where affirmative action policies are implemented. Courts examine whether these policies unfairly disadvantage majority-group members while aiming to promote substantive equality.
The concept of reverse discrimination is very controversial. Proponents of affirmative action argue that affirmative action policies are necessary to address systemic inequalities. Critics, however, state that such policies unfairly penalize majority-group members and undermine the principle of non-discrimination.
The Supreme Court has dealt with various reverse discrimination cases, emphasizing the need for policies to balance the promotion of diversity with the protection of all individuals from unfair treatment. The recent decision in Ames v. Ohio Department of Youth Services attempts to clarify that majority-group plaintiffs do not need to demonstrate “background circumstances” to establish a valid case of discrimination.
The Facts
Marlean Ames, a heterosexual woman, was employed by the Ohio Department of Youth Services (DYS) since 2004 and was promoted to Administrator of the Prison Rape Elimination Act (PREA) in 2014. In 2017, Ames was assigned a new supervisor, Ginine Trim, who is gay. Ames alleged that after Trim became her supervisor, she faced discrimination based on her sexual orientation and sex. In 2019, Ames applied for the position of Bureau Chief of Quality but was not selected. Shortly after, she was demoted from her PREA Administrator position, resulting in a significant pay cut. The position was then given to Alexander Stojsavljevic, a 25-year-old gay man.
Ames filed a lawsuit under Title VII, claiming that she was discriminated against because of her sexual orientation and sex. The district court granted summary judgment in favor of the DYS, stating that Ames lacked evidence of “background circumstances” necessary to establish a prima facie case of discrimination against a majority-group member. The U.S. Court of Appeals for the Sixth Circuit affirmed this decision, emphasizing that Ames did not provide sufficient evidence to prove that the DYS was an unusual employer who discriminates against the majority.
Ames appealed to the Supreme Court, which held oral arguments on February 25, 2025. The main issue before the court is whether or not Ames produced adequate evidence of “background circumstances.”
Background Circumstances
In the context of reverse discrimination, background circumstances refer to specific evidence or appropriate factors that support the suggestion that an employer discriminates against majority-group members. This includes, but is not limited to, past instances where the employer has shown a pattern of discriminating against majority-group members; official policies or statements that indicate a preference for minority-group members over majority-group members; or statistical evidence showing a significant disparity in the treatment of majority-group members compared to minority-group members. The concern with the background circumstances standard is that the burden only applies to so-called majority groups, whereas so-called minority groups do not need to meet that burden. In short, the high court will determine if it is fair to hold people to different standards based on their protected characteristics.
The Circuit Split
To further confound the issue, the circuits are split on the use of background circumstances. This includes the Sixth, Seventh, Eighth, and Tenth Circuits, while other circuits do not. The split occurred due to the lack of Supreme Court guidance on reverse discrimination cases, leaving the circuits to figure it out on their own.
What to Expect Next
Given the recent ruling by the Supreme Court, which eliminated affirmative action in college admissions, the Trump Administration’s dismantling of DEI programs, and a rule that appears not to apply equally to aggrieved parties, the Court will more than likely to set a precedent by removing the background circumstances from reverse discrimination cases. A formal decision is expected by the summer.