Last December, in a per curiam decision, the Sixth Circuit affirmed an employer’s summary judgment on a female employee’s Title VII claim that she was discriminated against for being a heterosexual. Ames v. Ohio Department of Youth Services, 87 F.3d 822 (6th Cir. 2023). Judge Marbley had found that she had failed to prove sufficient “background circumstances” to support a reverse discrimination failure-to-promote claim or pretext to rebut the employer’s explanation regarding her demotion for merely satisfactory job performance. The Supreme Court has granted certiorari to determine whether “background circumstances” are required in a reverse discrimination claim when there is no statutory basis for such a requirement. 2024 U.S. Lexis 3065 (Oct. 4, 2024).
According to the Court’s opinion, the plaintiff was hired in 2004, was promoted in 2014 to an Administrator position, was given a satisfactory performance evaluation in 2019, applied for a Chief position, was suggested by her new supervisor that she retire and was demoted by the Assistant Director back to her former position with a substantial cut in pay. Although the Director and Assistant Director of the Department were heterosexual, in 2017, a gay woman was promoted to be the plaintiff’s direct supervisor. The Department ultimately hired in 2019 a gay woman for the Director position that plaintiff was denied and a gay 25-year old man was promoted to replace her as Administrator.
The Court noted that the plaintiff, as a heterosexual, “must
show ‘background circumstances to support the suspicion that the defendant is
that unusual employer who discriminates against the majority.’” While she easily was able to prove the
typical prima facie case, where her failure to promote case
founders, however, is on the
requisite showing of “background circumstances.” Plaintiffs typically make that
showing with evidence that a member of the relevant minority group (here, gay
people) made the employment decision at issue, or with statistical evidence
showing a pattern of discrimination by the employer against members of the
majority group. . . . . First, [she] was terminated as PREA Administrator by [the
Assistant Director] and [HR Director], who are both heterosexual. [She] does
argue that [her supervisor], a gay woman, was the person who denied her the
position of Bureau Chief and who instead chose Frierson, who is also gay. But
[she] argued in the district court that [two hetereosexuals] were the decisionmakers
for that position, which means that [her] argument that [her gay supervisor] was the
decisionmaker is forfeited. . . . Second, [her] only evidence of a pattern of discrimination against
heterosexuals is her own demotion and the denial of the Bureau Chief position.
Under our caselaw, however, a plaintiff cannot point to her own experience to
establish a pattern of discrimination.
As for her demotion claim, again the Court agreed that she
sufficiently proved a prima facie case. However, she could not rebut the employer’s
explanation that the new (heterosexual) Director wanted someone in her Administrator position who exceeded expectations instead of merely meeting them. While her prior evaluation had been
satisfactory, she only exceeded one benchmark and showed room for improvement
in three others.
The plaintiff attempted to show pretext by the employer’s
shifting explanation. First, it said
nothing to her when she was demoted. Then,
to the EEOC, it stated merely that she was at will. However, in his deposition, the Director finally
explained that she was not sufficient to fulfill his “vision” of exceeding minimum
expectations. However, while the employer’s explanation changed over time, these
different explanations did not conflict with each other. “Absent
some conflict between an employer’s nondiscriminatory reasons for an adverse
employment decision, however, that the employer offers more than one of
them—even at different times—is not enough to create a genuine issue of fact as
to pretext.”
Finally, the Court did not find evidence that her successor’s
promotion was procedurally irregular or that her qualifications were “objectively
superior” to his.
One judge indicated that the “background circumstances” rule
should be revisited because it is inconsistent with the statutory language,
although it is binding precedent in the Sixth Circuit.
The “background circumstances” rule
is not a gloss upon the 1964 Act, but a deep scratch across its surface. The
statute expressly extends its protection to “any individual”; but our
interpretation treats some “individuals” worse than others—in other words, it
discriminates—on the very grounds that the statute forbids. Yet five circuits
(including our own) have adopted the “background circumstances” rule since the
D.C. Circuit first adopted it in 1981. . ..
. . . If the statute had prescribed this rule
expressly, we would subject it to strict scrutiny (at least in cases where
plaintiffs are treated less favorably because of their race). And nearly every
circuit has addressed this issue one way or another. . . . .
NOTICE: This summary is designed merely to inform and alert
you of recent legal developments. It does not constitute legal advice and does
not apply to any particular situation because different facts could lead to
different results. Information here can change or be amended without notice.
Readers should not act upon this information without legal advice. If you have
any questions about anything you have read, you should consult with or retain
an employment attorney.
