The Sixth Circuit’s recitation of the “background circumstances” test marks a split in the circuits. The Third Circuit rejected the “background circumstances” test in Iadimarco v. Runyon, 190 F.3d 151 (3d Cir. 1999). The Third Circuit held in that case that in reverse discrimination cases a plaintiff can show a prima facie case in the absence of direct evidence of discrimination by presenting sufficient evidence to allow a reasonable factfinder to conclude, given the totality of the circumstances, that the employer treated the majority-group plaintiff less favorably than others because of the employee’s race, color, religion, sex or national origin.
The District of Columbia (the author of the “background circumstances” test for a prima facie reverse discrimination case), and the Seventh, Eighth and Tenth Circuits have all adopted the “background circumstances” test as set out by the Sixth Circuit in Ames. The Third Circuit and Eleventh Circuits have expressly rejected this test. The balance of the circuits do not apply the “background circumstances” test to their analysis of reverse discrimination cases.
The Supreme Court will likely use Ames to resolve the split in the circuits. The Supreme Court decision in Bostock v. Clayton County Georgia may provide some guidance, and certainly had an impact on the Ames case. In Bostock, decided in 2020, the Supreme Court held that Title VII’s prohibition against discrimination on the basis of sex also barred discrimination on the basis of sexual orientation and gender identity. The Supreme Court’s opinion relied on the text of the statute in reaching this conclusion. As a result of Bostock, Ames’ claims of (reverse) discrimination on the basis of her sexual orientation fall within the protections of Title VII. However, to the extent Bostock presages a text-based analysis of the statute, it seems unlikely that the “background circumstances” test will survive.
Should the Supreme Court reverse the Sixth Circuit, it is unclear what test will apply for a reverse discrimination plaintiff to meet his or her burden to make a prima facie case in the absence of direct evidence. The Third Circuit’s test, which is closer to a more traditional McDonnell Douglas analysis, may provide some guidance. Notably, in the Iadimarco case, the Third Circuit held that disputes of material fact barred summary judgment, and noted the subtleties in interpreting the facts regarding the hiring of white and non-white employees. One could envision a fact pattern where the very existence of such a program would be held out as evidence of discrimination sufficient to support a prima facie case.
Wherever the Supreme Court lands, employers should prepare for challenges to diversity and inclusion initiatives should the Supreme Court reverse Ames and announce a new standard for reverse discrimination cases. As always, employers should focus on qualifications for the position.
Patricia Collins is a Partner and Employment Law Chair with Antheil Maslow & MacMinn, LLP, based in Doylestown, PA. Her practice focuses primarily on employment, commercial litigation and health care law. Patricia Collins can be contacted at 215.230.7500 ext. 126.
