Supreme Court takes up Title VII discrimination case

The Supreme Court has agreed to hear case that determines how courts will resolve employment discrimination cases filed by "majority" members of the community, i.e., whites, men, etc., as opposed to the traditional victims of employment discrimination, i.e., Black employees, and women.

The case is Ames v. Ohio Dept. of Youth Services. The Court agreed to hear the case a few weeks ago. The issue before the Court is this: Whether, in addition to pleading the other elements of Title VII, a majority-group plaintiff must show “background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.”

Some appellate courts impose upon the plaintiffs in such cases to prove their employer is that rare entity that discriminates against majority members of society. Other courts, like the Second Circuit, treat all discrimination cases the same no matter who the plaintiff is. Title VII, the primary employment discrimination statute, does not speak to this issue at all. But courts have imposed the "unusual employer" requirement in certain cases. That added requirement affected the plaintiff's case, as she is a heterosexual woman who claims her employer denied her a promotion in favor of a lesbian and later discriminated against her in favor of a gay man. The certiorari petition says this:

the Sixth Circuit is not alone in imposing this additional element. The D.C., Seventh, Eighth, and Tenth Circuits also require majority-group  plaintiffs  to  show  background circumstances. Two circuits—the Third and Eleventh—“have expressly rejected this rule.” And five circuits “simply do not apply it.” Within this third group, the First and Fifth Circuits  have employed  language  that  conveys disapproval of the rule without explicitly rejecting it. The Second, Fourth, and Ninth Circuits, meanwhile, have each acknowledged the existence of the split but declined to take a side. That tack has left district courts in these circuits in disarray, with some judges in the same courthouse requiring background circumstances and others declining to do so.

As federal courts around the country cannot agree on how to resolve cases like this, Ames' case is a good candidate for Supreme Court review, which is why the Justices agreed to hear the case. Since Title VII does not speak to this issue, and the Supreme Court has been applying Title VII lately based on what the statute says and not how judges wish to amplify it (including Bostock v. Clayton County (2020) and Muldrow v. City of St. Louis (2024)), my guess is the Court will hold that all Title VII plaintiffs are held to the same evidentiary test and that it will not matter if the plaintiff is Black, a man, or heterosexual.

Where does the Second Circuit stand on this? The certiorari petition says:

In Aulicino v. N.Y.C. Department of Homeless Services, 580 F.3d 73 (2d Cir. 2009), the Second Circuit recognized that some courts, like the D.C. Circuit, require majority-group plaintiffs to “proffer evidence of background circumstances” while others, like the Third Circuit, have rejected the requirement. Id. at 80 n.5 But the court “d[id] not decide” whether parties in the Second Circuit must do so.