SCOTUS: A Reverse Discrimination Claim is Just Another Discrimination Claim

Yesterday, the Supreme Court issued a unanimous decision in Ames v. Ohio Dept. of Youth Services. No surprises here. The plaintiff in Ames was a heterosexual employee who was passed over for a job in favor of a lesbian woman. Ames claimed that she was discriminated against based on her sexual orientation. 

Justice Jackson

Some circuit courts (although, notably *not* the Third Circuit where I practice) had held that a plaintiff in a Title VII discrimination claim who is a member of a majority group must make an additional showing of "background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority." This created a higher evidentiary standard for plaintiffs in a majority group. 

The SCOTUS opinion, authored by Justice Jackson eliminated this extra requirement: "We hold that this additional 'background circumstances' requirement is not consistent with Title VII’s text or our case law construing the statute." And, "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." So, a reverse discrimination claim is just another discrimination claim. 

This was pretty much a foregone conclusion before the opinion even came out, but now it's official. Perhaps more interestingly, Justice Thomas (joined by Justice Gorsuch) signaled "In a case where the parties ask us to do so, I would be willing to consider whether the McDonnell Douglas framework is a workable and useful evidentiary tool." The framework is currently used in disparate treatment claims based on circumstantial evidence (which is most of them), and McDonnell Douglas is one of the most cited SCOTUS decisions ever.