‘Ames’ ruling challenges ‘McDonnell Douglas’ framework in discrimination cases

SUMMARY

• Supreme Court unanimously rejects 6th Circuit’s “background circumstances” rule for majority plaintiffs in discrimination claims
• Justice Clarence Thomas questions the continued use of the McDonnell Douglas framework
• Employment attorneys in the Carolinas say the Ames decision has limited local impact but signals broader legal shifts
• Political climate and DEI backlash may drive more reverse discrimination cases than the Ames decision itself

By Kallie Cox & Kris Olson

Earlier this term, the U.S. Supreme Court unanimously decided that the 6th U.S. Circuit Court of Appeals had made it too difficult for a heterosexual woman’s discrimination claim to survive summary judgment.

Included in that decision was a concurrence by Justice Clarence Thomas, which Justice Neil M. Gorsuch joined, that has sparked some conversation among local employment attorneys.

In Ames v. Ohio Dept. of Youth Services, petitioner Marlean Ames argued that she was passed over for a new management position for a gay woman. She claims she was then demoted, only to have a gay man hired to do her old job.

A U.S. District Court judge granted summary judgment to her employer, the Ohio Department of Youth Services, because the plaintiff had failed to meet the added requirement several federal circuits had grafted onto the traditional burden-shifting framework for evaluating disparate treatment claims first articulated by the Supreme Court in the 1973 landmark decision McDonnell Douglas Corp. v. Green.

That requirement, part of the prima facie showing a plaintiff must make under the first stage of McDonnell Douglas, requires only certain plaintiffs — those who are white or straight, for example — to show “background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.”

A unanimous Supreme Court ruled that such an added burden has no basis in the text of Title VII or the court’s precedents.

“As a textual matter, Title VII’s disparate-treatment provision draws no distinctions between majority-group plaintiffs and minority-group plaintiffs,” Justice Ketanji Brown Jackson wrote for the court.

The court also cited the 2020 decision in Bostock v. Clayton County, stating that the “law’s focus on individuals rather than groups [is] anything but academic.”

In addition to flouting the “basic principle” that Title VII does not vary based on whether the plaintiff is a member of a majority group, the “background circumstances” rule also “ignores our instruction to avoid inflexible applications of McDonnell Douglas‘ first prong,” Jackson added.

“The ‘background circumstances’ rule disregards this admonition by uniformly subjecting all majority-group plaintiffs to the same, highly specific evidentiary standard in every case,” she wrote.

The Ohio Department of Youth Services argued that the “background circumstances” rule was not a heightened standard, but “just another way of asking whether the circumstances surrounding an employment decision, if otherwise unexplained, suggest that the decision was because of a protected characteristic.”

But that contention was directly at odds with the 6th Circuit’s description of the rule and its application in this case, the court noted.

While Thomas joined the majority opinion in full, he concurred “to highlight the problems that arise when judges create atextual legal rules and frameworks.” He wrote, not just talking about the “background circumstances” rule but the McDonnell Douglas framework itself, suggesting that in the future, he would be willing to consider whether it is a “workable and useful evidentiary tool” and that, in the meantime, litigants should consider themselves free to proceed without it.

Statewide impact

North Carolina and South Carolina employment attorneys say the Ames decision won’t have a major impact on discrimination cases in their states, but that the opinion establishes the framework to completely upend the McDonnell Douglas framework.

Cara Y. Crotty, a partner with Constangy, Brooks, Smith & Prophete in Columbia, South Carolina, said she was not surprised by the decision.

“When the court took the case, this was really the outcome that I expected. It just seemed clear from the text of Title VII that this would be the correct decision,” Crotty said. “I’ve always viewed the extra background circumstances rule as questionable because there was no basis in Title VII to support that. So, I definitely was not surprised, and I don’t I don’t think that the (Equal Employment Opportunity Commission) ever even took the position that majority plaintiffs had to show extra evidence either.”

While several judicial circuits implemented the background circumstances test for majority plaintiffs, North Carolina and South Carolina were not among them, Crotty said. Because of this, the decision likely won’t significantly impact employment cases in the Carolinas.

Laura Noble, managing partner of the Noble Law firm in Raleigh, North Carolina said that as a plaintiff’s attorney, she is more interested in Thomas’ concurrence than the Ames decision.

“I’m most interested in Thomas’s concurrence when he talks about the McDonnell Douglas evidentiary framework and how he basically is condemning district courts’ inflexible, formulaic usage of it and has sort of invited a case directly on point about whether the McDonnell Douglas framework should apply in summary judgment,” Noble said. “But for us as plaintiffs’ attorneys, it’s a very interesting decision to read, particularly from Justice Thomas.”

The Ames decision, while rightly decided ultimately by the Supreme Court, might not necessarily result in more cases headed to trial, Bartina L. Edwards of the Law Offices of Bartina Edwards PLLC in Charlotte, North Carolina said. Instead, it may make it more difficult for plaintiffs to try their cases.

“Not many people will have the resources or the opportunity to take their case beyond the trial court level, nor will all these cases be reviewed by the Supreme Court. Notwithstanding the ultimate outcome, this case, in my opinion, never should have ended up at the Supreme Court. So, if you have a lot of decisions that are quote, unquote, inconsistent with the established laws, in terms of how you evaluate these cases and the standard by which you evaluate these cases, then you may or may not end up at trial,” Edwards said. “But, by not going to trial, what you end up with are the situations where you have more discrimination going unchecked in the workplace. Or alternatively, you end up with these cases at trial that become very expensive and difficult to try; and more concerning is, if you end up in a court using the wrong standard with the right case that tests established law, you end up changing the law in a way that negatively and adversely impacts everyone.”

Still, the Ames decision is important, Edwards says.

“This is really about individual equity, not preferential treatment for certain individuals — inclusivity and not exclusivity. An astute observer must take note of the concurring opinion,” Edwards said. “However, with that in mind, in spite of any efforts that may be poised to chip away at the law, the Supreme Court’s unanimous decision confirms the law has not changed and underscores true justice is equal protection under the law, and it is this legal truth for which those who are on the right side of justice must continue to advocate.”

Individuals, companies and governments must be held to the right legal standards and then uphold the law, she added.

“Lawyers and nonlawyers must collaborate to ensure laws are not changed to meet the whims of those who do not believe in equal protection under the law,” Edwards said. “Our laws must not be based on the purported court of public opinion, distorted views of the law, but rather the court of law, adhering to the rule of law.”

The Ames decision will likely have more practical significance than legal significance, Brian P. Murphy, of Stephenson & Murphy in Greenville, South Carolina, said.

“The decision really didn’t, especially in the 4th Circuit, announce anything that is legally significant or different than what we’ve always understood,” he said. “But in the real world of HR practice and employment, it has really raised awareness as to the proper coverage of Title VII and the other discrimination statutes.”

Before the Ames decision, the various judicial circuits could be divided into three groups, Murphy said. There are those that adopted the background circumstance test, those that rejected it and those that never explicitly adopted or rejected it.

“The circuits that adopted it were 6th, 7th, 8th, 10th and the DC Circuit. The two circuits that outright rejected it were the 3rd and the 11th Circuit,” Murphy said. “The 1st, the 2nd, 4th, the 5th and the 9th never really took a position but also didn’t follow it.”

In the wake of Ames, every district must apply the same tests to all discrimination cases, whether the plaintiff is a majority or minority member, he said.

“What Justice Jackson made really clear in Section 280 of the opinion is we’re not looking at groups. We’re not going to accept artificial constructs based on what group you’re in, the focus is on the individual, not the group,” Murphy said. “And the question in every case is whether an employment decision was made because of that individual’s status, whether it be race, sex, whatever. So, it’s not about one group versus another group, or if one group gets discriminated against it’s discrimination (while) another group gets reverse discrimination. And that’s really the significance.”

Thomas’ concurrence

Of more interest to attorneys was Thomas’ concurrence, which invited the demise of McDonnell Douglas. Like the “background circumstances” rule, Thomas noted that McDonnell Douglas itself is a “judge-made rule” with no basis in the text of Title VII.

The McDonnell Douglas framework was originally developed for courts to use in bench trials. Its extension into the summary judgment context has caused “significant confusion” and “troubling outcomes on the ground,” Thomas noted in a dissent earlier this year.

Thomas said his first concern with McDonnell Douglas is that it is incompatible with the summary judgment standard set forth in Federal Rule of Civil Procedure 56.

“Namely, the framework does not speak in terms of ‘genuine dispute[s]’ regarding the facts” but instead speaks in terms of “proving” facts “by the preponderance of the evidence,” Thomas noted.

Other problems that Thomas has with McDonnell Douglas are that it “fails to capture all the ways a plaintiff can prove a Title VII claim” and “requires courts to draw and maintain an artificial distinction between direct and circumstantial evidence.”

“That the McDonnell Douglas framework ‘has befuddled’ courts ‘[s]ince its inception is yet another reason to question it,” Thomas added.

Looking ahead

Noble is excited about the prospect of an end to the use of the McDonnell Douglas evidentiary framework.

“I think it would be a great development if the McDonnell Douglas framework went away,” Noble said. “I think that would be better for everybody because we would have a more simple standard to apply like other civil torts and cases would be less likely to be dismissed at the summary judgment stage and be more likely to get to a jury trial.”

Crotty also addressed the framework, saying Gorsuch and Thomas view it as being a judge-made doctrine that is not supported by the text of federal anti-discrimination laws. The concurrence seems to be an open invitation for an attorney to bring forth a case that could challenge it, she said.

However, even with the elimination of this standard it is unclear whether more employment discrimination cases will make it to trial, Crotty said.

“I think plaintiff lawyers will try to argue that elimination of the McDonnell Douglas standard will give them some more flexibility, of course, so we don’t know really whether or not that change would make it easier to survive summary judgment if we get rid of McDonnell Douglas. I think it remains to be seen how that will play out in terms of whether or not more cases end up going to trial.”

It is unclear what would happen if the framework were eliminated and how the merits of discrimination cases would be evaluated, Crotty said. This is a source of some concern for employment attorneys including Murphy, who are asking if this framework is abolished, what will take its place?

“I think a lot of us would like to know what’s going to be there to replace it and what does that look like,” Murphy said. “Because it only applies, really, to certain circumstantial evidence cases. And as the court indicated, it’s unclear at what points of litigation we should apply that.”

While the court’s opinion might not drive an increase in these cases going to trial, the political climate and attacks on diversity, equity and inclusion programs and the decision might, attorneys said.

“HR, as a profession, had gone in very, very deep on all these notions of DEI, which means different things in different companies, and that sort of became ingrained in a lot of business practices,” Murphy said. “There was a lot of resentment among people sort of bubbling below the surface, and I don’t think a lot of HR people saw. The first crack we saw on this was the Students for Fair Admission v. Harvard case from a couple years ago that kind of exposed some of higher education’s efforts to promote one group over another. That had nothing to do with employment on the surface, but it started a discussion and some backlash for DEI programs that then started coming up above the surface.”

Crotty agreed, saying the decision might lead to more cases surviving either a motion to dismiss or a motion for summary judgment than before Ames, but also noting that the political climate and attacks on DEI in the wake of the Harvard case may lead to more reverse discrimination claims.

“I think we’re more likely to see cases brought by majority plaintiffs because of that than we are because of the Ames decision,” she said.

Edwards said attorneys advising businesses or companies should counsel their clients to do the right thing and to be cautious not to value one group above any other.

“I think sometimes we lean too far to the left or the right, and when you enforce the laws equally, it creates an equitable work environment and helps people to navigate the workplace in a way that they don’t end up with these issues,” Edwards said.

EXTERNAL LINKS

• U.S. Supreme Court Opinions
• Equal Employment Opportunity Commission
• Library of Congress: McDonnell Douglas v. Green