Is the rule requiring members of a majority demographic group to show additional “background circumstances” to support their Title VII discrimination claims itself discriminatory? The 6th Circuit’s analysis of the “background circumstances” rule in its recent decision in Ames v. Ohio Department of Youth Services[1] raised that dilemma for at least one jurist.

In Ames, the plaintiff, a heterosexual woman and agency administrator, applied but was not selected for a promotion to bureau chief. Only four days later, the agency also demoted plaintiff and replaced her with a gay man. Several months after her demotion, a gay woman was selected for the bureau chief position for which plaintiff had applied and had been rejected. The plaintiff filed suit claiming she was discriminated against because of her sex and her sexual orientation. The district court granted of summary judgment in favor of the agency.

Affirming the district court’s grant of summary judgment, the 6th Circuit explained that because the plaintiff was “heterosexual . . . she must make a showing in addition to the usual ones for establishing a prima-facie case,”[2] and that she “must show ‘background circumstances’ to support the suspicion that the defendant is that unusual employer who discriminates against the majority.”[3]

The majority implicitly recognized that the facts alleged by plaintiff sufficiently supported a standard prima facie case of discrimination: she was demoted and denied a position and replaced by or rejected in favor of a gay individual. Her claim failed, however, because she did not “mak[e] a showing with evidence that a member of the relevant minority group . . . made the employment decision at issue, or with statistical evidence showing a pattern of discrimination by the [agency] against members of the majority group.”[4] In other words, she failed to present those additional background circumstances required for reverse discrimination claims.

Concurring in the majority’s finding that the plaintiff could not demonstrate the agency’s legitimate, non-discriminatory reason was pretextual, Judge Raymond Kethledge expressed his disfavor of the background circumstances rule. Notably, Judge Kethledge’s disagreement was not with the application of the rule, but with its very existence. 

Reasoning that the plain language of Title VII itself should be dispositive of the issue, Judge Kethledge explained that “Title VII . . . bars employment discrimination against ‘any individual’ — itself a phrase that is entirely clear — ‘because of such individual’s . . . sex.’”[5] Yet, the background circumstances rule “impose[s] different burdens on different plaintiffs based on their membership in different demographic groups.”[6]

Using the instant case as an illustration of the apparent disparities caused by the rule, Judge Kethledge explained that no one disputed the plaintiff made a prima facie showing of discrimination based on her sexual orientation and, had plaintiff been a gay person, this would have been sufficient. Yet, because plaintiff was not a gay person, her claim was treated differently — requiring an additional requisite showing that she would not otherwise have to make but for her sexual orientation. The result, as Judge Kethledge noted, was that plaintiff was denied a jury trial on her claim solely because of the application of the “background circumstances” rule (i.e., solely because of her membership in a majority group).

Judge Kethledge described the background circumstances rule as “not a gloss upon the 1964 Act, but a deep scratch across its surface.”[7] Judge Kethledge explained this was because Title VII expressly protects any individual, but the application of the background circumstances rule inherently treats some individuals worse than others or “discriminates” against them based on their membership in a particular protected group — something the “statute forbids.”[8] He expressed hope that the Supreme Court would address the issue, noting the current split between the circuits on the issue with the 6th, 7th, 8th, 10th and D.C. Circuits having adopted the background circumstances rule and the 3rd and 11th Circuits having rejected it. In Judge Kethledge’s opinion, “[O]ur court and others have lost their bearings in adopting this rule.”[9]

The “background circumstances” rule was first adopted by the D.C. Circuit in Parker v. Baltimore & O.R. Co.,[10] a reverse race and sex discrimination claim brought by a white male. The court described its position as dealing with “more difficult problems . . . none more difficult than the delicate balance of interests necessary in adjudicating the claims of ‘reverse’ discrimination that sometimes accompany an employer’s efforts to improve the record of his hiring practices.”[11]

Considering the plaintiff’s membership in several majority demographic groups, the court determined that a “further adjustment” to the McDonnell-Douglas burden shifting standard had to be made. The court explained this was because the original McDonnell-Douglas standard “required the plaintiff to show ‘that he belongs to a [] minority.’” In creating the background circumstances rule, the court recognized that “[w]hites [or other majority groups] are also [] protected [] under Title VII, but it defie[d] common sense to suggest that the promotion of a black employee justifies an inference of prejudice against white co-workers in our present society.’”[12] Thus, the court held that plaintiffs who belong to majority groups may only rely on the McDonnell-Douglas criteria to prove a prima facie case “when background circumstances support the suspicion that that the defendant is that unusual employer who discriminates against the majority.”[13]

This question is, perhaps, ripe for the United States Supreme Court. Considering the outward societal factors that undoubtedly played a role in the adoption of the background circumstances rule, it seems any subsequent review of the rule by the Supreme Court will necessarily include a lengthy and in-depth analysis of past and current social considerations and the history and purpose of Title VII. Regardless, as it currently stands, plaintiffs belonging to majority groups in the 6th and several other Circuits, face the battle of proving additional, background circumstances in order to maintain their discrimination claims.

Sarah Belchic is an associate in Littler Mendelson PC’s Nashville office who focuses her practice on labor and employment law matters. Sarah previously externed for the Equal Employment Opportunity Commission Hearing Unit in the Memphis Field Office, working closely with the administrative law judges. She can be reached at SBelchic@littler.com.

Eric Stevens is a shareholder in Littler Mendelson PC’s Nashville office with over 40 years of employment and general civil litigation experience, providing common-sense advice and representing employers in administrative and employment litigation, with a focus in the areas of healthcare and financial institutions. Stevens is also a Tennessee Supreme Court Rule 31 listed civil mediator. He can be reached at EStevens@littler.com.