For over 60 years, Title VII of the Civil Rights Act has been the guiding law for protecting minority groups from unlawful discrimination. It has also been the basic principle behind reverse discrimination cases.
But a recent court case, Ames vs. Ohio Department of Youth Services, universally changes what has historically been called “reverse discrimination” – so much so that the term may soon become obsolete.
Here’s a breakdown of what you should know about workplace discrimination, reverse discrimination, and the recent Supreme Court ruling that may impact your current workplace policies.
Per the Civil Rights Act, discrimination occurs when employment decisions such as hirings, promotions, and pay raises are based on a person's protected class (race, color, religion, sex, national origin).
For example, if an underqualified white male were preferred over a black male for being offered a position, the employer may need to show a compelling business reason for choosing the white male. If there were evidence that the black male was more qualified than the white male, this may be a case of color and/or racial discrimination.
Similarly, reverse discrimination occurs when members of a majority group are treated unfairly or experience some form of employment discrimination based on a protected characteristic (race, color, religion, sex, national origin).
For example, if an underqualified black male were preferred over his white counterpart for a position, this may be reverse discrimination based on race.
However, up until recently, plaintiffs in five appellate courts (6th, 7th, 8th, 10th, and D.C. Circuits) who were from a majority group were required to also provide evidence of “background circumstances” to show reverse discrimination. This might include statistical evidence of disparate impact (i.e. a pattern of discrimination) or evidence that the decision‑maker(s) belonged to the relevant minority group. That means the white male would not only have to show he was more qualified, he would also have to show that either there was a pattern of discrimination against white males or that the hiring manager was part of the minority group making the decision.
But these additional obligations to show reverse discrimination recently changed in a Supreme Court ruling for Ames vs. Ohio Department of Youth Services.
After working for the Ohio Department of Youth Services since 2004, Marlean Ames, a heterosexual woman, interviewed for a new management position in 2019 that was ultimately given to a lesbian woman. She was then demoted from her position and replaced by a gay man.
Ames sued saying she was discriminated against because of her sexual orientation, a violation of Title VII. However, because being heterosexual was part of the majority group, this was deemed a case of reverse discrimination that would require background circumstances to show majority group bias.
Initially, the federal district court sided with the Ohio agency, saying it had presented "legitimate, nondiscriminatory business justifications" for its decision not to promote Ames and lacked the necessary "background circumstances" to substantiate a reverse discrimination claim. The 6th U.S. Circuit Court of Appeals agreed.
Ames then petitioned the Supreme Court to rule on the case, which they agreed to review.
In a unanimous, concurring opinion, the Supreme Court vacated the lower court ruling in favor of Ames. The justices sharply criticized the background circumstances requirement, calling it a "judge-made" doctrine that conflicts with Title VII’s principles and potentially breaches constitutional protections. They went on to say this standard embeds an explicit racial preference into anti-discrimination law, forcing majority plaintiffs to meet an extra burden not imposed on minority plaintiffs.
In other words, the Supreme Court ruled that Title VII applies equally to all individuals, regardless of majority or minority status. Discrimination is discrimination, not discrimination and reverse discrimination.
This ruling highlights two key points that may impact employers.
If somebody believes they have been discriminated against due to a protected characteristic, regardless of whether they are part of the majority group or not, they can sue for discrimination. There is no extra burden to show a pattern of discrimination if they are of the majority status.
Although this was not the issue at hand, SCOTUS reaffirmed that discrimination against heterosexuals qualifies as sex discrimination under Title VII. This is important to note, particularly if an employee claims harassment or feels discriminated against because they are straight. Everyone should have the same protections, regardless of their sexual orientation.
Due to this Supreme Court ruling, there are several workplace policies you should review to ensure compliance.
As an employer, you should not dismiss or filter out discrimination-based claims from majority-group employees. Going forward, these claims will proceed like any other. In addition, you should have solid business reasoning for choosing one person over another for all employment decisions.
If your company has initiatives for diversity, equity, and inclusion (DEI), you may need to review these policies to ensure no preferential treatment is given based on protected characteristics. With majority-group employees now able to challenge DEI efforts more easily, there may be an increase in legal challenges for being excluded.
If your employee handbook includes a statement about equal employment, you will want to ensure it is uniform with standards across all demographics without any preferential treatment statements for a specific protected class.
Regardless of the employment decision, your managers must have a solid reason for making an employment decision. Train them to have documented proof to back all decisions in the event you are challenged with a legal claim.
At the end of the day, employers should ignore personal characteristics, protected or not, and simply make a business decision based on the most qualified person. Anything else may subject them to legal challenges.
For questions or more information about what may constitute discrimination, please contact your certified HR expert. Not a current Stratus HR client? Book a free consultation and our team will contact you shortly.