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Supreme Court weighs whether 'background circumstances' rule imposes extra Title VII burden in Ames v. Ohio Department of Youth Services
Summary
At oral argument in Ames v. Ohio Department of Youth Services, the court considered whether the Sixth Circuit's "background circumstances" evidentiary rule requires majority-group plaintiffs to meet a higher prima facie standard under Title VII.
The Supreme Court heard oral argument Tuesday in Ames v. Ohio Department of Youth Services, a Title VII employment-discrimination case in which petitioner Marlene Ames says the Sixth Circuit imposed an extra "background circumstances" evidentiary requirement on majority-group plaintiffs.
Counsel for Ames, Mister Wang, told the court Ames had worked at the Ohio Department of Youth Services for more than two decades and received a positive 2018 year-end performance review before experiencing two adverse employment actions in 2019: she was passed over for a bureau chief promotion that remained open for eight months and later lost her job and was replaced, the briefs and argument say. "Equal justice under law," Wang said near the argument's close, framing the petition as a request that Title VII apply the same way to majority- and minority-group plaintiffs.
The central legal question in the argument was whether the Sixth Circuit's so-called background circumstances rule, which the Sixth Circuit described as an additional showing sometimes required of majority-group plaintiffs, is consistent with Title VII and this Court's precedents applying the McDonnell Douglas burden-shifting framework. Petitioner argued the rule imposes a categorical, additional burden inconsistent with Title VII and this Court's cases such as McDonnell Douglas and McDonald v. Santa Fe Trail. Respondent Ohio, represented by Mister Geiser, said petitioner failed to make out a prima facie case because, among other things, there was no evidence decisionmakers knew Ames's sexual orientation.
Several justices pressed both sides on how the McDonnell Douglas framework operates at summary judgment and whether courts have misapplied step one to screen out meritorious claims. Justice Gorsuch and others questioned whether McDonnell Douglas should govern summary-judgment review at all or whether the appropriate inquiry is whether a plaintiff has raised a genuine dispute of material fact about whether discrimination occurred. Justice Kavanaugh, Justice Sotomayor and others discussed how the step-three pretext inquiry relates to the motivating-factor and but-for causation standards this Court has described in other Title VII decisions.
The United States and the Equal Employment Opportunity Commission appeared through counsel Miss Robertson, who told the justices the EEOC rejects the background circumstances rule and applies the same McDonnell Douglas prima facie formulation to all plaintiffs. Robertson argued that raising the step-one showing to require proof that an employer "usually" discriminates would improperly screen out meritorious cases and that discovery and employers' production of explanations typically resolve many disputes before trial.
Petitioner emphasized that a plaintiff who has established the usual prima facie elements'1 membership in a protected class, an adverse employment action, qualification for the position and replacement or other circumstantial facts'1 should not face an extra, categorical evidentiary presumption against proceeding simply because the plaintiff belongs to a majority group. Respondent urged that on the particular record here, including testimony that decisionmakers lacked knowledge of Ames's sexual orientation, the petitioner did not carry even the standard step-one burden after discovery.
Argument canvassed circuit splits. Counsel for Ames and the United States told the court that a majority of circuits do not apply the background circumstances rule; the Sixth Circuit's approach, they said, imposes an additional requirement at step one that many courts and litigants view as inconsistent with the statutory text and this Court's precedent. Ohio's counsel replied that the Sixth Circuit was applying ordinary step-one inquiry and that the record here lacks evidence to raise the necessary inference of discrimination.
No decision was announced; the case was submitted at the end of argument. The Court will issue a written opinion resolving whether and how the background circumstances concept may be applied consistent with Title VII and the Court's burden-shifting precedents.