Reprinted with permission from the October 14th edition of The Legal Intelligencer. (c) 2024 ALM Media Properties. Further duplication without permission is prohibited.

On October 4, 2024, the United States Supreme Court granted certiorari to hear Ames v. Ohio Department of Youth Services, a case from the United States Court of Appeals for the Sixth Circuit. The Plaintiff in Ames alleged discrimination on the basis of her membership in a majority group – that is, Ames is what has come to be known as a “reverse discrimination” case. The case will resolve a split in the circumstances regarding the evidence required for an employee to make a prima facie case of “reverse discrimination”, and could require employers to reevaluate their diversity, equity and inclusion programs.

Mariam Ames is a straight woman, who was employed by the Ohio Department of Youth Services as an administrator. Ms. Ames applied for a promotion and was told during her interview process that she should retire. After the interview, Ms. Ames was demoted, and a gay male was hired to fill her administrator position. A gay woman was hired to the position for which Ms. Ames sought a promotion. Ms. Ames claimed that the Ohio Department of Youth Services discriminated against her on the basis of her sexual orientation. The United States District Court for the Southern District of Ohio granted the employer’s motion for summary judgment, finding that Ames had not shown the “background circumstances” necessary to support a prima facie case that the employer discriminated against a member of the majority group. The court applied the burden-shifting analysis in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), as courts do in all discrimination cases. The Sixth Circuit affirmed, citing its previous holdings that require reverse discrimination plaintiffs to make an additional showing to the McDonnell Douglas prima facie case. Not only was Ames required to show the “usual” prima facie elements, she must also show “background circumstances” to support a reverse discrimination claim. The Sixth Circuit noted that Ms. Ames easily made a prima facie case: her claim was based on sexual orientation, a protected class under Title VII; she was demoted from a position for which she was qualified; and she was replaced by a gay man. But, according to the Sixth Circuit, the case “foundered” on Ms. Ames’ failure to show the required “background circumstances”. The Sixth Circuit noted that reverse discrimination plaintiffs generally meet this “additional” burden, in the absence of direct evidence, by presenting evidence that a member of the relevant minority group made the decision at issue, or that there is statistical evidence of a pattern of discrimination by the employer against members of the majority group. The Supreme Court granted certiorari, and the case will be heard in the upcoming term.