HR’s Path Forward After 'Reverse Discrimination' Oral Arguments

The U.S. Supreme Court heard oral arguments on Feb. 26 in a case involving whether plaintiffs in “reverse discrimination” cases can be held to a higher standard when providing evidence of discrimination. With this case having the potential to alter the future of workplace discrimination lawsuits, HR professionals must remain informed and prepare for a potential increase in litigation.  

In the case (Ames v. Ohio Department of Youth Services), Marlean Ames, a heterosexual woman, sought to revive her lawsuit against the Ohio Department of Youth Services. Ames said she lost her job to a gay man and was passed over for a promotion in favor of a lesbian woman in violation of Title VII of the Civil Rights Act of 1964. Title VII prohibits discrimination based on race, color, religion, sex, and national origin. Ames alleged discrimination based on her sexual orientation and sex.

The 6th U.S. Circuit Court of Appeals decided that Ames had not shown the background circumstances that courts require of those who are members of a “majority group” to prove unlawful discrimination. At least four other U.S. appeals courts have adopted similar hurdles for members of majority groups to prove discrimination. Those courts have said the higher bar is justified because discrimination against those workers is relatively uncommon. However, other courts have said that Title VII does not distinguish between bias against members of minority and majority groups.

Beyond the specifics of Ames’ career, the Feb. 26 hearing focused on determining whether courts should impose a high burden of proof on majority-group litigants in reverse discrimination cases. The hearing was not to determine whether Ames had been discriminated against but rather to decide whether she bore the burden of proof in her case. “The main theme of this morning’s arguments was ‘equal justice under the law.’ It is likely that the Supreme Court will run with this theme to find that the background circumstances test is contradictory to the very purpose of the discrimination laws, namely, to treat each employee the same,” said Jason Habinsky, an attorney with Haynes Boone in New York City.

Ames argued that a heightened standard of evidence for majority-group plaintiffs circumvents Title VII’s mission to suppress discrimination rather than perpetuate it.

“It doesn’t eradicate discrimination,” argued Xiao Wang, Ames’ attorney and director of the Supreme Court Litigation Clinic at the University of Virginia School of Law in Charlottesville, Va., before the court. “It instructs courts to practice it by sorting individuals into majority and minority groups based on their race, their sex, or their protected characteristic, and applying a categorical evidentiary presumption not in favor of but against the nonmoving party based solely on their being in a majority group, however you define it.”

Wang concluded that Ames is not requesting a higher degree of justice than similar plaintiffs of minority groups: Rather, she is requesting the same opportunity to state her case with equal requisite evidence.

“All Ms. Ames is asking for is equal justice under law. Not more justice, but certainly not less, and certainly not less because of the color of her skin or because of her sex or because of her religion,” Wang said.

Experts warn of the possibility of a significant increase in reverse discrimination cases from majority-group plaintiffs if the court rules against the legality of increased standards of background evidence for such cases.

“One of the themes of today’s argument was whether the removal of the background circumstances test could create a floodgate effect. While counsel challenged this premise, it is likely that such a decision would lead to an uptick in litigation,” Habinsky said. “Very often, the publicity and notoriety alone of a decision by the highest court like this is enough to prompt an increase in litigation as a result.”

Despite this, Wang argued that no such floodgate would be opened in the event of the court’s siding with Ames, citing that more than half of circuit courts do not enforce a higher standard of evidence for reverse discrimination plaintiffs, and allegedly with no issue.

The opposing side stated that it believes all discrimination plaintiffs should be held to the same standards of providing evidence.

“Ohio agrees it is wrong to hold some litigants to a higher standard because of their protected characteristics,” said Elliot Gaiser, solicitor general of Ohio, representing the Ohio Department of Youth Affairs. “But that is not what happened in this case. She could not establish that anybody was motivated by sexual orientation or even knew her sexual orientation, nor the orientation of the unclassified political appointees.”

Justice Elena Kagan questioned the defense’s concession of the question at hand and its decision to focus on the details of Ames’ experience.

“You say you agree with your friends on the question that we took this case to decide,” Kagan said. “The question presented is whether a majority-group plaintiff has to show something more than a minority-group plaintiff, here, whether a straight person has to show more than a gay person. Everybody over here says no. You say no, too. That was the question that we took the case to decide.”

During oral arguments, Justice Sonia Sotomayor advocated for more transparency from hiring organizations regarding the motivations behind hiring decisions.

“Why is it so hard on an employer to just say why they didn’t hire someone?” she said.

HR professionals should prepare for the possibility of more reverse discrimination cases by doubling down on their commitments to uphold fairness and excellence in the workplace, ensuring legality in the way they approach inclusion.

“Although a decision has yet to come, the Supreme Court’s hearing of arguments in this case represents a continuing need for organizations to identify and eliminate discrimination of all kinds, approaching inclusion and diversity in a strategic and mindful manner,” said Jim Link, SHRM-SCP, CHRO at SHRM. “HR professionals should grant employees a safe and effective means of reporting discrimination and prioritize legal compliance in how they approach creating a more inclusive work environment.”

Additionally, HR professionals should consider more comprehensive recordkeeping practices regarding talent management proceedings to preserve evidence of nondiscriminatory action.

“It also becomes crucial for decision-makers and human resource professionals to be reminded to take appropriate steps to carefully document all employment decisions, regardless of the affected employee, in order to memorialize a paper trail supporting the legitimate, nondiscriminatory reasons for the decisions,” Habinsky said.