On June 5, the U.S. Supreme Court in Ames v. Ohio Department of Youth Services unanimously rejected the “background circumstances” rule — a heightened evidentiary standard that five circuit courts of appeals, including the 6th Circuit, had been applying to employment discrimination claims under Title VII of the Civil Rights Act of 1964 (“Title VII”).[1]  The rule required claimants who are members of a “majority” group within a class protected by Title VII to establish both a typical prima facie case and additional “background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.”[2]  Aside from resolving a circuit split on the rule, the decision is also notable for the concurring opinion authored by Justice Clarence Thomas questioning application of the McDonnell-Douglas burden shifting analysis to summary judgment motions.[

The Underlying Claims and the Court’s Ruling

Plaintiff Marlean Ames (Ames) is a heterosexual female who claimed she was discriminated against on the basis of her sexual orientation when she was passed over for a promotion in favor of a lesbian woman and then demoted and replaced by a gay male.[4]  The district court dismissed her claims at summary judgment under the McDonnell Douglas burden-shifting analysis, which is the traditional framework for evaluating discrimination claims in the absence of direct evidence of discrimination.[5]

The first step of the McDonnell Douglas analysis requires plaintiffs to make a prima facie showing that: (1) they are a member of a class protected by Title VII; (2) they were qualified for their position; (3) they suffered an adverse employment action; and (4) they were treated less favorably than someone outside of their protected class.[6]  However, because Ames is heterosexual, the district court imposed an additional burden on Ames, applying the “background circumstances” rule.[7]  Finding that Ames had not proffered evidence suggesting that the defendant “was the rare employer who discriminates against members of a majority group,” the district court granted summary judgment to the defendant.[8]  The 6th Circuit Court of Appeals affirmed, also citing the “background circumstances” rule.[9]

The Supreme Court vacated the 6th Circuit’s decision, rejecting the “background circumstances" rule and its heightened evidentiary standard for members of majority groups.[10]  The court reasoned that the rule is inconsistent with both the text of Title VII and the Court’s own precedent.[11]  The Court emphasized that Title VII offers protection to any individual on the basis of race, color, religion, sex, or national origin, regardless of the individual’s membership in a minority or majority group.[12]  In light of this, the court held that “Congress left no room for courts to impose special requirements on majority-group plaintiffs alone.”[13]  The court emphatically stated that “Our case law thus makes clear that the standard for proving disparate treatment under Title VII does not vary based on whether or not the plaintiff is a member of a majority group. ... The ‘background circumstances’ rule flouts that basic principle.”[14]

Given the 6th Circuit’s prior adoption of the “background circumstances” rule, the Supreme Court’s decision immediately changes Title VII as applied by Tennessee federal courts. Ames also will affect Tennessee court decisions regarding discrimination matters as the Tennessee Human Rights Act (THRA) was intended to further the policies embodied in the similar federal laws against employment discrimination.[15] Additionally, Tennessee's courts regularly consult the decisions of their federal counterparts for guidance when called upon to construe and apply the THRA.[16]  It has always been a best practice for Tennessee employers to base personnel decisions on legitimate, non-discriminatory reasons, regardless of whether the affected employee is a member of a majority group, and to document those reasons well.  Ames makes this practice compulsory, as the decision is likely to encourage an increase in discrimination claims from individuals who are members of groups historically perceived as being in the “majority.”

The Concurring Opinion Questions the Future of DEI Programs

Thomas, joined by Justice Gorsuch, wrote a concurring opinion highlighting additional problems with the background circumstances rule. First, he noted the difficulties in determining what is a “majority” group.  For example, while women represent the majority of the U.S. population, that is not the case in some states and counties, and women make up the majority of employees in some industries, but the minority in others.[17]

Next, Thomas took aim at DEI programs. While the case didn't invalidate DEI, Thomas's concurrence highlighted concerns about how such programs might lead to "overt discrimination against those perceived to be in the majority."[18] Thomas noted that the background circumstances rule is “nonsensical” for the additional reason that it requires courts to assume that only an “unusual employer” would discriminate against those it perceives to be in the majority.[19] Thomas wrote, “a number of this Nation’s largest and most prestigious employers have overtly discriminated against those they deem members of so-called majority groups. American employers have long been ‘obsessed’ with ‘diversity, equity, and inclusion’ initiatives and affirmative action plans … Initiatives of this kind have often led to overt discrimination against those perceived to be in the majority.”[20]

The Ames opinion has been lauded by the Trump administration as it attacks DEI programs and it provides support for recent EEOC guidance on DEI-related discrimination, including EEOC’s recent publication What To Do If You Experience Discrimination Related to DEI at Work. Employee advocate groups emphasize that well-designed DEI initiatives focusing on promoting equal opportunity for all should remain legally defensible under Title VII, regardless of the Ames decision. However, such groups acknowledge that employers may become more cautious and hesitant to implement or expand DEI programs due to fear of costly and prolonged litigation.

The Concurring Opinion Casts Doubt on McDonnell Douglas

While the Ames majority opinion resolves the circuit split on the “background circumstances” rule, the concurring opinion authored by Thomas and joined by Gorsuch raises questions regarding application of the McDonnell Douglas burden shifting analysis to motions for summary judgment.

The McDonnell Douglas burden shifting “framework aims to ‘bring the litigants and the court expeditiously and fairly to th[e] ultimate question”’ in a disparate-treatment case — namely, whether ‘the defendant intentionally discriminated against the plaintiff.’”[21]  The analysis consists of three parts:

At the first step of the familiar three-step inquiry, the plaintiff bears the “initial burden” of “establishing a prima facie case” by producing enough evidence to support an inference of discriminatory motive. If the plaintiff clears that hurdle, the burden then “shift[s] to the employer to articulate some legitimate, nondiscriminatory reason for the employee’s rejection.”  Finally, if the employer articulates such a justification, the plaintiff must then have a “fair opportunity” to show that the stated justification “was in fact pretext” for discrimination.[22]

The Ames majority opinion expressly notes that the court was assuming, without deciding, that McDonnell Douglas was an appropriate tool for evaluating motions for summary judgment.[23]

However, in his concurrence, Thomas expresses doubt that this assumption is valid.[24] Noting that like the “background circumstances” rule, the McDonnell Douglas burden shifting analysis is a judicially-created doctrine with no basis in the text of Title VII, Thomas challenged its use at summary judgment for four reasons:  “the framework is incompatible with the summary-judgment standard; it fails to encompass the various ways in which a plaintiff could prove his claim; it requires courts to maintain artificial distinctions between direct and circumstantial evidence; and it has created outsized judicial confusion.”[25]  As such, he advocated for the court to consider the issue when presented an appropriate case.[26]

While the Supreme Court may or may not eventually address the issue, Thomas’s concurrence may spur more immediate change by influencing courts and litigants to independently abandon the McDonnell Douglas framework.  He concluded his concurrence by stating:

"In the meantime, litigants and lower courts are free to proceed without the McDonnell Douglas framework. This Court has never required anyone to use it. And, district courts are well equipped to resolve summary judgment motions without it. Every day—and in almost every context except the Title VII context—district courts across the country resolve summary judgment motions by applying the straightforward text of Rule 56. In my view, it might behoove courts and litigants to take that same approach in Title VII cases."[27]

In the brief time since Ames was handed down, Thomas’s suggestion to disregard McDonnell Douglas has already been cited favorably by at least three judges discussing alternatives to McDonnell Douglas,[28] including one district judge who accepted his invitation and expressly elected to “follow the Circuit and Justice Thomas's lead by judging [defendant’s] motion only under Rule 56.”[29]  Judges and lawyers who already shared Thomas’s disfavor for McDonnell Douglas might be emboldened to try affecting change on their own.

Richard D. Bennett is a partner at Phelps Dunbar LLP in Memphis. He is a member of the firm's Labor and Employment and Litigation groups. He is a graduate of the University of Memphis Cecil C. Humphreys School of Law. Bennett may be reached at rick.bennett@phelps.com or (901) 259-7121. 

Jay A. Ebelhar is counsel for Phelps Dunbar LLP in its Memphis office. He is a member of the firm's Labor and Employment and Litigation groups. He is a graduate of the University of Memphis Cecil C. Humphreys School of Law. Ebelhar may be reached at jay.ebelhar@phelps.com or (901) 259-7212.