Reverse discrimination analysis is likely to face a historical shift

Title VII of the Civil Rights Act of 1964 is supposed to protect every individual from discrimination. Yet some circuits have adopted a test that discriminates on the very grounds the law forbids.

In Title VII cases, the McDonnell Douglas burden shifting framework applies in the absence of direct evidence of discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). To make out a prima facie case of discrimination under McDonnell Douglas, an employee must show that: (1) the employee is a member of a protected class; (2) the employee met the employer’s legitimate job expectations; (3) the employee suffered an adverse employment action; and (4) similarly situated employees outside of the protected class were treated more favorably. O’Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308 (1996); Young v. United Parcel Service, Inc., 575 U.S. 206, 229 (2015).

Some circuit courts have interpreted McDonnell Douglas to require that the plaintiff be in a protected minority group. In cases where the employee alleging discrimination is in a “majority” group, such circuits have applied the “background circumstances” test in order for such an employee to meet the first element of the McDonnell Douglas test. The DC, Sixth, Seventh, Eighth, and Tenth U.S. Circuit Courts of Appeal have all applied the background circumstances test to employees in so-called “reverse discrimination” cases. This test requires a plaintiff to present evidence of “background circumstances” to establish that the defendant is “that unusual employer who discriminates against the majority.” Parker v. Baltimore & Ohio R.R. Co., 652 F.2d 1012, 1017 (DC Cir. 1981); Mills v. Health Care Serv. Corp., 171 F.3d 450, 457 (7th Cir. 1999); Notari v. Denver Water Dept., 971 F.2d 585 (10th Cir. 1992). Evidence of “background circumstances” “can be divided into two general categories: (1) evidence indicating that the particular employer at issue has some reason or inclination to discriminate invidiously against whites, ... and (2) evidence indicating that there is something ‘fishy’ about the facts of the case at hand that raises an inference of discrimination.” Harding v. Gray, 9 F.3d 150, 153 (D.C. Cir. 1993).

The 6th Circuit recently reiterated its reliance on the background circumstances test, affirming summary judgment because plaintiff, a heterosexual female, failed to make the requisite showing of background circumstances to proceed with her claims. Ames v. Ohio Dept. of Youth Services, ___ F.4th ___ (6th Cir. 2023 WL 836845 (December 4, 2023)). In a concurring opinion, Circuit Judge Raymond Kethledge lamented the fact that the court was bound to apply the background circumstances test, calling it a “deep scratch” across the surface of the Civil Rights Act of 1964. In particular, he noted that the court’s interpretation “treats some ‘individuals’ worse than others – in other words, it discriminates – on the very grounds that the statute forbids.” Id. at *4 (Kethledge, J., concurring).

Other appellate courts such as the First, Second, Third, Fourth, Ninth and Eleventh Circuit U.S. Courts of Appeal have rejected the background circumstances test or simply do not apply it. The 3rd Circuit has held that a plaintiff need not present evidence of “background circumstances” to establish a prima facie discrimination case, arguing it “has a tendency to force the plaintiff to initially present proof that would otherwise only become relevant to rebut the employer’s explanation of the challenged conduct and that it can lead to jury confusion.” Iadimarco v. Runyon, 190 F.3d 151, 159-162 (3d Cir. 1999).

In light of recent Supreme Court jurisprudence rejecting affirmative action plans, that Court may be willing to take up and resolve the conflict, one that has persisted for decades. In earlier times one might have predicted with some confidence that SCOTUS would not impose the additional burden of the background circumstances test. See, e.g., Oncale v. Sundowner Offshore Services, Inc. 523 U.S. 75, 78 (1998) (no conclusive presumption that an employer will not discriminate against members of employer’s own race); Furnco Const. Corp. v. Waters, 438 U.S. 567, 577 (1978) (central focus of a Title VII inquiry is whether employer is treating people less favorably than others because of their protected characteristic).

But in light of Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and University of North Carolina, 600 U.S. 181 (2023), where the court rejected decades of precedent in favor of effectively eliminating affirmative action programs in universities, the current Supreme Court may take the issue up. If the Court does so, the likelihood is that the Court will reject the background circumstances test and hold that no additional burden should be imposed on Title VII plaintiffs in so-called reverse discrimination cases.

Likewise, some employer diversity, equity and inclusion initiatives (DEI) may be challenged in the courts using the sweeping language of Students for Fair Admissions, particularly if they embrace “race-conscious” considerations.

In the diverse workforce of 21st Century America, the background circumstances test is outdated and difficult to apply. Discrimination against any race is wrong, whether the plaintiff is in a minority group or not. The ambiguity in defining and applying “background circumstances” in a case to show an employer is engaging in discrimination essentially forces some plaintiffs to establish pretext at the outset. Making some plaintiffs have a higher burden of proof than others is inconsistent with Title VII. As Circuit Judge Kethledge notes, “nearly every circuit has addressed this issue one way or another. Perhaps the Supreme Court will soon do so as well.”