Labor & Employment Law Daily Wrap Up, SUPREME COURT NEWS—Justices appear surprised in largely uncontested oral argument on burden of proof for majority-group Title VII plaintiffs, (Feb 27, 2025)

By Jason Albright, J.D.

“[N]ormally, of course,” offered Justice Gorsuch, “we are a court of review, not first views, Justice Ginsburg would like to remind us.”

The U.S. Supreme Court heard oral argument yesterday in Ames v. Ohio Department of Youth Services, putatively concerning whether, in addition to the other elements of a Title VII employment discrimination claim, a majority-group plaintiff must show “background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.” All parties before the High Court, however, including the state agency employer in the case, appeared to agree that majority-group Title VII plaintiffs should not bear such an extra burden of proof, with the employer arguing instead that it never knew the plaintiff—who alleged that she was discriminated against on the basis of her sex and sexual orientation—is straight. Appearing to begin an outline of a possible resolution of the case, Justice Gorsuch asked, “[W]hat would be wrong with a judgment holding that everybody is treated equally at the first step of McDonnell Douglas…?”

Ohio Department of Youth Services. The plaintiff worked for the Ohio Department of Youth Services, first as an executive secretary, and then as the Prison Rape Elimination Act (PREA) administrator. In April 2019, she applied to become Bureau Chief of Quality Assurance and Improvement, but the department initially declined to hire any of the three candidates for the position, instead leaving it unfilled.

Lesbian applicant hired eight months later. Eight months later, the department hired a new applicant, a lesbian woman who did not originally apply for the position. Unlike the plaintiff, the new applicant did not have a college degree, and though she held management roles, she had joined the department two years after the plaintiff.

Demotion. In May 2019, the plaintiff was told she would be terminated from the PREA position and was offered to return to her previous position as an executive secretary, a demotion that also involved a pay cut. Her managers then selected a new PREA administrator, a gay man who had joined the department as a social worker a few years earlier.

Lawsuit. The demoted administrator sued the department in federal district court, alleging that it denied her the promotion and demoted her based on her sexual orientation and sex, in violation of Title VII.

Decisions below. The district court granted the department’s motion for summary judgment. Applying McDonnell Douglas and Sixth Circuit precedent, it held that the plaintiff, as a member of a “majority group,” had to show “background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.” And the district court found that she failed to do so, at least with respect to the department’s decision not to promote her.

The Sixth Circuit affirmed, agreeing that the plaintiff failed to meet the showing of the requisite “background circumstances.” That showing, the appeals court said, can be made with evidence that a member of the relevant minority group—in this case, a person who is not heterosexual—made the employment decision at issue, or with statistical evidence showing a pattern of discrimination by the employer against members of the majority group. But here, the plaintiff made neither showing. First, she was terminated as PREA administrator by an assistant director and an HR representative, both of whom were heterosexual. Second, her only evidence of a pattern of discrimination against heterosexuals was her own demotion and denial of the Bureau Chief position. And under the Sixth Circuit’s caselaw, “a plaintiff cannot point to her own experience to establish a pattern of discrimination.”

Having lost before the Sixth Circuit, the demoted administrator petitioned for and was granted certiorari.

Former employee’s argument. Appearing on behalf of the petitioner at oral argument, Xiao Wang argued that the judge-made “background circumstances” rule is not consistent with Title VII because the Supreme Court has “said that Title VII aims to eradicate all discrimination in the workplace.” According to Wang, the background circumstances rule does not do that. It does not eradicate discrimination but “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 non-moving party based solely on their being in a majority group, however you define it.” That, said Wang, is not consistent with Title VII, which “tells us that we're supposed to protect all individuals from individual discrimination based on the individual case.”

Position of the U.S. Appearing on behalf of the United States as amicus curiae, Ashley Robertson argued similarly that a heightened standard applied to majority-group plaintiffs “risks screening out cases with merit and complicates litigation by focusing on whether to shift a burden of production that Ohio had already met in this case.” The Court, she argued, should vacate and remand for the Sixth Circuit “to apply the proper standards in the first instance, including to consider Ohio's alternative arguments for why summary judgment might still be proper.”

Addressing a question from Justice Alito about whether a court may take into account the race of a decisionmaker or plaintiff in the later steps of the McDonnell Douglas inquiry, if not—as here—the first step, Robertson answered that race—or sex—can, of course, be relevant. “In our experience litigating those case -- these cases, it typically takes two forms. First, a plaintiff can introduce evidence that their employer has a history of discriminating against their particular group, be it a discriminatory pattern of hiring or firing or a history of derogatory comments directed at the particular group.” In a second scenario, according to Robertson, “courts can consider a plaintiff's identity to help them draw inferences from the evidence in the record. So comments that look neutral in a vacuum might take on a different valence when directed at a certain group.” What a court cannot do, she asserted, is “draw inferences solely from the identity of the plaintiff and the court's own judgment, independent of any evidence in the record, about how frequently that group may or may not experience discrimination.”

State agency’s argument. Appearing for the Ohio Department of Youth Services, Ohio Solicitor General T. Elliot Gaiser first conceded that Ohio “agrees it is wrong to hold some litigants to a higher standard because of their protected characteristics.” That, he asserted, was not even what happened in the case.

Instead, according to Gaiser, the plaintiff claimed the Ohio Department of Youth Services took two adverse actions against her after Governor DeWine took office in January 2019 and appointed a new cabinet-level director of the department: denying her a promotion and demoting her because of her sexual orientation. “But, after discovery, 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… that she points to as comparators.” In other words, she failed to make out a prima facie case at the first McDonnell Douglas step that should apply to every Title VII plaintiff, namely provide evidence that "if otherwise unexplained, raises an inference of discrimination."

Floodgates? One of the central issues Justice Barrett addressed in her questioning was the potential “floodgate problem,” that applying the same standard for majority-group as minority-group plaintiffs is “just going to throw the door wide open to Title VII suits because now everybody can say, hey, this was discrimination on the basis of race, gender, et cetera?”

Wang answered in the negative, observing first that “this is an evidentiary question that arises at summary judgment. So they've already have gotten past a discussion with the EEOC, plausibility under Iqbal and Twombly, a motion to dismiss.” Second, looking at the dispersion of federal appellate court precedent and its implications, “about more than half the circuits don't apply the background circumstances rule. We don't see those circuits having some sort of flood of litigation.”

“[O]rthogonal to the question we took.” Justice Kagan put her finger on the central tension of the day after Gaiser observed that “while we all agree that everyone should be treated equally, we don't agree about what that prima facie step actually looks like when we do that.”

“Yes, I know…,” Kagan responded, “But… that's orthogonal to the question we took. So, I mean, why would we use this case, which is about the -- whether a majority-group plaintiff has an extra burden, to opine on a range of things that have nothing to do with that question?”

Gaiser argued in response that the state agency’s position is that the Court should still affirm the Sixth Circuit because “what the Sixth Circuit's judgment did here is what we ask every court to do at the first step of McDonnell Douglas even if we agree that's saying that an additional burden is a mischaracterization of what this Court has said in the past.”

Gorsuch’s outline. Finally, as he sometimes does at oral argument, Justice Gorsuch ventured the outline of a possible opinion: “Mr. Gaiser, I guess maybe another way of coming at perhaps the same question is what would be wrong with a judgment holding that everybody is treated equally at the first step of McDonnell Douglas, if it applies at summary judgment, we've never so held, but let's assume, and that you would then on remand be able to argue about what that fourth prong of the first prong of McDonnell Douglas means for everybody?”

The petition is No. 23-1039.

Attorneys: Xiao Wang for Marlean A. Ames. T. Elliot Gaiser, Solicitor General of Ohio, for Ohio Department of Youth Services. Ashley Robertson, Assistant to the Solicitor General, U.S. Department of Justice, for the United States, as amicus curiae supporting vacatur.

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