What’s going on here? Supreme Court votes unanimously? It is as rare as an April shower, unless one is driving on the Pali Highway from Honolulu to Kailua.
The Ohio Department of Youth Services operates the State’s juvenile correctional system. In 2004, the agency hired petitioner Marlean Ames, a heterosexual (a person who is sexually or romantically attracted exclusively to people of the other sex; straight is the colloquial term) woman, to serve as an executive secretary. Ames was eventually promoted to program administrator.
In 2019, Ames applied for a newly created management position in the agency’s Office of Quality and Improvement. Although the agency interviewed her for the position, it ultimately hired a different candidate—a lesbian (woman who experiences sexual and romantic attraction to other women) woman—to fill the role.
A few days after Ames interviewed for the management position, her supervisors removed her from her role as program administrator. She accepted a demotion to the secretarial role she had held when she first joined the agency—a move that resulted in a significant pay cut. The agency then hired a gay man to fill the vacant program-administrator position.
Ames subsequently filed this lawsuit against the agency under Title VII of the Civil Rights Act of 1964, alleging that she was denied the management promotion and demoted because of her sexual orientation.
Title VII prohibits employers from discriminating against employees on the basis of race, color, religion, sex, or national origin.
Under Title VII precedents, a plaintiff may make out a prima facie case of disparate treatment by showing “that she applied for an available position for which she was qualified, but was rejected under circumstances which give rise to an inference of unlawful discrimination.”
The case of McDonnell Douglas Corp. v. Green, 411 U. S. 792 (1973) establishes the traditional framework for evaluating disparate-treatment claims that rest on circumstantial evidence. At the first step of that framework, the plaintiff must make a prima facie showing that the defendant acted with a discriminatory motive.
The District Court concluded that Ames had failed to make that showing because she had not presented evidence of “background circumstances” suggesting that the agency was the rare employer who discriminates against members of a majority group.
The District Court held that without that evidence, plaintiffs who are members of majority groups—including heterosexual plaintiffs, like Ames—could not discharge their evidentiary burden at the first step of the McDonnell Douglas inquiry.
The question in this case is whether, to satisfy that prima facie burden, a plaintiff who is a member of a majority group must also show “background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.”
The Sixth Circuit affirmed, holding that Ames had failed to meet her prima facie burden because she had not shown “background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.”
The court reasoned that Ames, as a straight woman, was required to make this showing “in addition to the usual ones for establishing a prima facie case.”
And it explained that plaintiffs can typically satisfy this burden by presenting “evidence that a member of the relevant minority group (here, gay people) made the employment decision at issue, or with statistical evidence showing a pattern of discrimination… against members of the majority group.”
The panel concluded that the agency was entitled to summary judgment because Ames had failed to present either type of evidence.
The Supreme Court reversed by a unanimous vote, holding that this additional “background circumstances” requirement is not consistent with Title VII’s text or case law construing the statute. The court vacated the judgment and remanded for application of the proper prima facie standard.
A plaintiff “may succeed [under the McDonnell Douglas framework] either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.”
For most plaintiffs, the first step of the McDonnell Douglas framework—the prima facie burden—is “not onerous.”
A plaintiff may satisfy it simply by presenting evidence “that she applied for an available position for which she was qualified, but was rejected under circumstances which give rise to an inference of unlawful discrimination.”
But, under Sixth Circuit precedent, plaintiffs who are members of a majority group bear an additional burden at step one: They must also establish “background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.”
The Sixth Circuit’s “background circumstances” rule cannot be squared with the text of Title VII or the Supreme Court longstanding precedents.
As a textual matter, Title VII’s disparate-treatment provision draws no distinctions between majority-group plaintiffs and minority-group plaintiffs.
Rather, the provision makes it unlawful “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U. S. C. §2000e–2(a)(1).
The “law’s focus on individuals rather than groups [is] anything but academic.” By establishing the same protections for every “individual”—without regard to that individual’s membership in a minority or majority group—Congress left no room for courts to impose special requirements on majority-group plaintiffs alone.
The standard for proving disparate treatment under Title VII does not vary based on whether or not the plaintiff is a member of a majority group.
The “background circumstances” rule flouts that basic principle. Ames v. Ohio Department of Youth Services, No. 23-1039, June 5, 2025, U.S. Supreme Court, per Justice Jackson.
The information provided in this article is for general information only. It is not legal advice. Publication of this information is not intended to create, and receipt by you or reading by you does not establish or constitute an attorney-client relationship.
ATTY. EMMANUEL S. TIPON was a Fulbright and Smith-Mundt scholar to Yale Law School where he was awarded a Master of Laws degree specializing in Constitutional Law. He graduated with a Bachelor of Laws degree from the University of the Philippines. He placed third in the 1955 bar examinations. He is admitted to practice before the U.S. Supreme Court, New York, and the Philippines. He practices federal law, with emphasis on constitutional issues, immigration law, and appellate federal criminal defense. He was the Dean and a Professor of Law of the College of Law, Northwestern University, Philippines. He has written law books and legal articles for the world’s most prestigious legal publishers including Thomson West and Lawyers Co-operative Publishing Co. and writes columns for newspapers. He wrote the case notes and annotations for the entire Immigration and Nationality Act published by The Lawyers Co-operative Publishing Co. and Bancroft-Whitney Co. (now Thomson Reuters). He wrote the best-seller “Winning by Knowing Your Election Laws.” Atty. Tipon was born in Laoag City, Philippines. Cell Phone (808) 225-2645. E-Mail: attorneytipon@gmail.comfilamlaw@yahoo.com. Website: https://www.tiponimmigrationguide.com
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