Supreme Court rejects heightened prima facie framework for "majority" plaintiffs

On June 5, the Supreme Court issued Ames v. Ohio Dept. of YouthServices, which holds that Title VII did not authorize the Sixth Circuit’s requirement that “majority” plaintiffs satisfy a heightened pleading burden to assert a prima facie case of discrimination under Title VII. As is often the case, we also get an interesting and provocative concurrence from Justice Thomas, joined by Justice Gorsuch.

The plaintiff in Ames is a heterosexual woman who was denied a program administrator position. She claimed the defendant instead hired a gay man for the position. Ames claimed this personnel action violated Title VII’s prohibition against sexual orientation discrimination. The Sixth Circuit held the plaintiff did not plead a prima facie case because failed to assert “background circumstances to support the suspicion that the defendant is the unusual employer who discriminates against the majority.” The Supreme Court holds this heightened pleading burden is incorrect with a plain textual reading of the statute. Four other Circuits have similarly interpreted Title VII: the Seventh, Eighth, Tenth and D.C. Circuits. Writing for a unanimous Court, Justice Jackson states as follows:

 

● “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.’” 

 

● “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.”

 

● Not only have prior Supreme Court rulings suggested that all Title VII classes have equal protection under the statute, but “[t]he ‘background circumstances’ rule also ignores our instruction to avoid inflexible applications of McDonnell Douglas’s first prong. This Court has repeatedly explained that the ‘precise requirements of a prima facie case can vary depending on the context and were never intended to be rigid, mechanized, or ritualistic.’” Yet, in violation of this principle, the “background circumstances” rule “uniformly subject[s] all majority-group plaintiffs to the same, highly specific evidentiary standard in every case.” (emphasis in original). As the Court “has long rejected such ‘inflexible formulation[s]’ of the prima facie standard in disparate-treatment cases,” it holds that all classes of people are held to the same test in asserting a prima facie case.

 

This ruling is the latest in a trend at the Supreme Court, at least in the Title VII context, to dispense with complex, non-textual analyses in favor of a "plain reading" of the statute. We saw this in Bostock v. Clayton County (2020), which held that Title VII prohibits discrimination on the basis of sexual orientation and transgender status. The analysis in Bostock applied the plain terms of the statute and said that this discrimination is a form of sex discrimination. Then, in 2024, the Court held in Muldrow v. City of St. Louis, that "adverse actions" under Title VII needn't be "material" or "significant" to violate the statute, as the statute does not support such a legal standard. 

Justices Thomas and Gorsuch concur in the Ames ruling. Thomas writes that the prima facie rule rejected in this case was the product of "improper judicial lawmaking" and "lacks any basis in the text of Title VII." He goes on to highlight the adverse consequences of the "background circumstances" rule, stating that it forced courts to decide whether the plaintiff is a member of a majority or minority group, as some plaintiffs live in majority Black cities and others are mixed-race. In a footnote, Thomas further states that the "background circumstances" rule improperly assumes that discrimination against majority groups is sufficiently "unusual" to warrant a different prima facie test, as "American employers have long been 'obsessed' with 'diversity, equity, and inclusion' initiatives and affirmative action plans," placing them under pressure "to discriminate in favor of members of so-called minority groups."

 

Perhaps more interesting, the concurrence provides a lengthy attack on the familiar McDonnell-Douglas burden shifting model that courts have been using since 1973 to resolve employment discrimination cases. If you've read this far, you know that burden-shifting scheme: plaintiff must show a prima facie case and then attack the employer's articulated justification for the adverse action as pretextual." Thomas argues this judge-made model is confusing and does not work, in part because it does not square with summary judgment principles. If the Court were to overturn the McDonnell-Douglas model, that would be a major event in the lives of employment discrimination lawyers. The concurrence does not offer an alternative evidentiary model.