Rise in ‘Reverse-Discrimination’ Claims Predicted

Employers will likely face more “reverse discrimination” claims if the U.S. Supreme Court rules for a plaintiff challenging the heightened standard for such claims. Some legal experts say HR professionals should prepare for a ruling in her favor.

Marlean Ames, a heterosexual woman, was denied a promotion and ultimately demoted by the Ohio Department of Youth Services. The individual receiving the promotion was lesbian and the person who replaced Ames in her old role was gay. Ames claimed discrimination based on her sexual orientation and sex.

A number of federal appeals courts have held that there is a higher burden of proof for plaintiffs when the allegation of discrimination is made by a “majority” group, said Jonathan Segal, an attorney with Duane Morris in Philadelphia and New York City. In the 6th, 7th, 8th, 10th, and District of Columbia U.S. Circuit Courts of Appeal, a plaintiff must establish “background circumstances” to support the belief that the defendant discriminated against the majority group.

Segal said that such background circumstances include:

1. The person responsible for the adverse action being a member of the minority group. 

2. There being an alleged pattern of discrimination against multiple members of the majority group.

‘Problematic’ Distinction

“This majority-minority distinction, which has been rejected by the 3rd and 11th Circuits, is problematic for a number of reasons,” Segal said. 

Speaking at the SHRM Workplace Law Forum 2024 on Nov. 20, Elizabeth Beske, a professor at American University Washington College of Law in Washington, D.C., said that the background-circumstances standard is not in the text of Title VII and predicted the Supreme Court would rule for Ames. Beske said there would be more reverse discrimination claims as a result and that employers should ramp up their documentation of employment decisions.

“Title VII covers any individual who is discriminated against because of ‘race, color, religion, sex or national origin,’ ” Segal noted in his interview with SHRM. “The background-circumstances requirement is a judicial creation that limits the scope of Title VII’s mandate.”

According to Segal, other reasons the majority-minority distinction of this rule is problematic include:

1. It may not mirror many modern workplaces. For example, in many white-collar workplaces, women hold roughly an equal number of middle-manager positions as men. This belies the assumption underlying the background-circumstances requirement in those workplaces.

2. The distinction may be difficult to apply in the context of burdens of proof. For example, assume a white woman is let go by a Black man and that she alleges race and sex bias. Does the background-circumstances requirement apply only to her race-bias claim but not her sex-bias allegation?

3. It is inconsistent with the message of the Supreme Court’s 2023 Title VI cases on affirmative action in education. In the Harvard and University of North Carolina cases, the Supreme Court “effectively held race discrimination is unlawful discrimination regardless of the race,” Segal said. “It would be very surprising if the Supreme Court took a contrary position under Title VII.”

In addition, as demographics change, a particular group may no longer be in the majority but instead may have a plurality, Andrew Maunz, an attorney with Jackson Lewis in Pittsburgh told SHRM.

Takeaways

A Supreme Court ruling for Ames could have a big impact on inclusion and diversity (I&D) initiatives, Segal said. 

“Unlawful discrimination is all but inevitable if the clarion call for greater diversity is not coupled with legal training that makes clear that Title VII’s prohibition on discrimination does not have an exception where the goal is to increase diversity,” he said. “Such training is necessary now, but the risk of not having such training will increase if and when the background-circumstances requirement is eliminated.”

Some I&D training programs still draw distinctions based on those in the majority and those in the minority, Segal said. He added that such a distinction dangerously stereotypes based on protected statuses, such as race and sex, and invites litigation now and even more so if the Supreme Court rejects the background-circumstances requirement.

As a practical matter, it “rarely works out well” when an employer demotes a long-standing employee to a significantly lower-paying position, Michelle Phillips, an attorney with Jackson Lewis in White Plains, N.Y., told SHRM.

“HR professionals need to seriously consider whether this is a good move, especially with a 30-year-tenured, long-term employee,” Phillips said. “The public shame and humiliation of the demotion, as well as the impact on the employee’s psyche and well-being can be very problematic.”

However, Maunz said that even if Ames persuades the Supreme Court that a heightened standard should not be applied to reverse-discrimination cases and sends her case back to the district court, she hasn’t necessarily won against the Ohio Department of Youth Services. 

The state of Ohio maintained—and might still assert—that Ames was “difficult to work with” and that the Ohio Department of Youth Services had nondiscriminatory reasons for picking another candidate and removing Ames from her old position, according to Black Enterprise.