Ames v. Ohio Department of Youth Services

Case Analysis

In McDonnell Douglas Corp. v. Green, the Court set out a three-part, burden-shifting framework for a plaintiff who seeks to prove with circumstantial evidence an employer’s discriminatory intent in violation of Title VII. First, a plaintiff must establish a “prima facie case of discrimination.” This burden is “not onerous”; a plaintiff must only show that they were qualified for the position and that the employer took an adverse action against them “under circumstances which give rise to an inference of unlawful discrimination.” Next, if a plaintiff satisfies this first requirement, the burden “shift[s] to the employer to articulate some legitimate, nondiscriminatory reason” for the alleged discriminatory act. Finally, if the employer satisfies its burden, then the burden shifts back to the plaintiff to prove that the employer’s reason is a “pretext” for discrimination.

Under Sixth Circuit precedent, a plaintiff who is “a member of a majority group” bears a particular burden at the first step: as part of their prima facie case, a majority-group plaintiff must show “background circumstances that support the suspicion that the defendant is the unusual employer who discriminates against the majority.”

The parties wrangle over whether this requirement violates Title VII.

Ames argues first that the “background circumstances” requirement imposes “a different and more difficult prima facie burden” on majority-group plaintiffs, and that it runs headlong into Title VII’s text, Court precedent, and longstanding government practice.

As to text, Ames contends that the requirement flouts Title VII’s focus on individuals, not groups (like “majority-group” plaintiffs). She says that reading the requirement into Title VII would paradoxically require courts to discriminate on grounds that this antidiscrimination statute expressly forbids.

As to precedent, Ames claims that Court precedent demonstrates that Title VII applies to protect members of a minority group and members of a majority group equally. She asserts that nothing in the reasoning of McDonald Douglas or other cases suggests otherwise. Moreover, Ames says that Court precedent does not require either to show anything more than a mere prima facie case at the first step. Ames points to Bostock v. Clayton County, 590 U.S. 644 (2020): “That holding makes clear no individual Title VII plaintiff—majority or minority—need marshal ‘extensive [and] rigorous’ statistical evidence to ‘establish a pattern’ of discrimination against a particular group.”

As to practice, Ames asserts that the Equal Employment Opportunity Commission (EEOC) “disavowed the ‘heightened standard of proof’ required by ‘background circumstances,’” and that “[i]nstead, the Commission ‘applies the same standard of proof’ to all claims.”

Ames argues next that the “background circumstances” requirement is vague and ill-defined. Without guidance about how to interpret the requirement, Ames says that courts must make their own judgments, sometimes turning, for example, on whether a plaintiff “fall[s] within a group that has been ‘socially disfavored.’” Ames contends that judges shouldn’t make this kind of decision, because, among other reasons, it means that judges treat individuals “less favorably because of their” protected characteristic.

The government weighs in as amicus curiae to support Ames and makes substantially similar arguments. The government urges the Court to remand the case to allow the lower courts to apply the McDonnell Douglas framework without the “background circumstances” requirement in the first instance.

The department counters that the “background circumstances” requirement is consistent with Title VII’s core requirements. It says that circumstantial-evidence claims under Title VII require courts to assess the causal nexus between a protected characteristic and an adverse employment decision—to assess the “context” of the plaintiff’s claim—at the first step. It asserts that “background circumstances” is simply the courts’ way of assessing that nexus, or context. By this reckoning, the requirement is not additional at all; instead, it is part and parcel of the prima facie requirement, and merely reflects the reality “that the inferences that can be drawn from circumstantial evidence will vary depending on the context of a case—a point this Court itself has made.” The department points out that the Sixth Circuit itself “has made clear that the background circumstances requirement is not onerous.”

The department argues next that the requirement is consistent with Court precedent. The department says that the Court in McDonnell Douglas didn’t have to turn to “background circumstances,” because the plaintiff in that case was a member of a minority group. “The reason that the elements discussed in McDonnell Douglas were sufficient to establish a prima facie case of discrimination was the well-recognized history of discrimination against African Americans.” But according to the department, that’s not so when the plaintiff is a member of a majority group. In such situations, the department says that courts must assess the context based on “background circumstances.” The department contends that any confusion over this requirement “does not justify [effectively] eliminating the prima facie step.”

The department argues next that Ames’s claim failed because of her litigation decisions, and not because of the “background circumstances” requirement. In particular, the department says that Ames conceded facts in the district court that contradicted her later argument “that she had shown that the woman who received the job for which Ames had applied shared a sexual orientation with the relevant decisionmaker.” Moreover, it claims that “Ames rested her prima facie case of sexual-orientation discrimination on the fact that she had alleged two separate instances of discrimination,” and that she “even acknowledged that…a single instance” “might not have created an inference of discrimination.” But the department points out that the Sixth Circuit rejected Ames’s demotion claim, and that she can therefore only show one instance of discrimination, her failure-to-hire claim.

Finally, the department argues that Ames’s requirement to show a prima facie case was the same as any other plaintiff’s requirement, despite the “background circumstances” standard. The department suggests that if some courts misapply the “background circumstances” requirement to create a greater burden for majority-group plaintiffs, then the Court should “should level up, rather than level down.” According to the department, “[t]hat will ensure a properly calibrated prima facie burden, which will not only demonstrate fidelity to the text of the statute, but to the background principle of at-will employment.”

Significance

The parties present two diametrically opposed understandings of the “background principles” requirement. According to Ames, the requirement is an additional burden that applies only to majority-group plaintiffs. According to the department, in contrast, the requirement is simply a tool that some courts use to determine whether a plaintiff met the baseline prima facie requirement. In other words, according to the department, the “background principles” requirement is the prima facie requirement, at least in certain types of cases.

In deciding between these competing understandings, look for the Court to probe how lower courts apply the “background principles” requirement and to make its own determination whether the requirement is an added burden on majority-group plaintiffs, or not.

If the Court decides that the “background principles” requirement is an additional burden (or even merely a different burden), as seems likely, look for the Court to side with Ames. That’s because the Court in discrimination cases rigorously adheres to an equal treatment principle, based on individuals and their characteristics, and not their group identities. Under this principle, legal standards must apply equally to everyone, irrespective of their characteristics. The Court disfavors any differential treatment, even (or especially) to account for the disparate status of a group or class with which an individual shares a characteristic.

One final point. This case will resolve a circuit split. By Ames’s count when she filed her petition for certiorari, five circuits required a plaintiff to show “background circumstances” as part of the prima facie case, while two circuits explicitly rejected such a requirement, and another five circuits did not apply it.

ATTORNEYS FOR THE PARTIES

• For Petitioner Marlean A. Ames:

  • Xiao Wang (434.924.8956)

• For Respondent Ohio Department of Youth Services:

  • Thomas Elliot Gaiser (614.466.8980)

AMICUS BRIEFS

In Support of Petitioner Marlean A. Ames:

• America First Legal Foundation (Christopher E. Mills, 843.606.0640)

• American Alliance for Equal Rights (Thomas Ryan McCarthy, 703.243.9423)

• Equal Protection Project (William Alan Jacobson, 401.246.4192)

• Josh Young (William E. Trachman, 303.292.2021)

• Massachusetts Chapter of the National Organization for Women (Robert Scott Mantell, 617.470.1033)

• National Employment Lawyers Association (Eric Schnapper, 206.616.3167)

• Pacific Legal Foundation (Jeffrey Daniel Jennings, 202.888.6881)

In Support of Respondent Ohio Department of Youth Services:

• Local Government Legal Center, National Association of Counties, National League of Cities, and International Municipal Lawyers Association (Nadia Ann Sarkis, 310.552.4400)

• NAACP Legal Defense & Educational Fund, Inc. (Alexsis Marie Johnson, 212.965.2200)

In Support of Neither Party:

• Professors Katie Eyer, Sandra Sperino, and Deborah Widiss (Zachary D. Tripp, 202.682.7000)

In Support of Vacatur:

• United States (Sarah M. Harris, Acting Solicitor General, 202.514.2217)