“The Way it Is” by Bruce Hornsby and the Range (track 5 on their 1986 album of the same name) is one of my favorite songs in the “poignant” genre. If you don’t know the song, take a listen. Heck, take a listen again even if you do know it. “The Way it Is” is a song about compassion. The last verse goes:
“Well, they passed a law in ‘64
To give those who ain’t got a little more
But it only goes so far
Because the law don’t change another’s mind
When all it sees at the hiring time
Is the line on the color bar . . . .”
The legal reference is to Title VII, of course. One of my mentors, Stan Mazaroff, aptly explained my job within a month of starting work: “when employers [screw] up you help them fix it and make sure it doesn’t happen again.” As a baby lawyer in the mid-1980’s, the song put Stan’s mantra to music for me. Nearly 40 years later, a significant part of my job remains advising employers on how to correctly follow anti-discrimination laws. It’s been a rewarding career.
But back to the law. The evidentiary standard in a basic disparate treatment case was established by the Supreme Court in McDonnell Douglas v. Green, 411 U.S. 792 (1973). It is well known that an employer cannot treat individuals differently based on a protected classification like race, sex, national origin, or religion. The main, but not exclusive, focus of anti-discrimination laws has been to protect those who are in the “minority” or members of a socially disfavored group.
But “reverse discrimination” cases exist. Statutory language-wise there’s no difference: if an employer cannot legally make a decision based on someone’s protected status, it matters not whether the discrimination is against someone who’s in the “minority” or “majority” of the population. It is illegal discrimination. Right? Well… maybe.
In the past year, the evidentiary standard in reverse discrimination cases percolated up again, this time in the Sixth Circuit. In Ames v. Ohio Dep’t of Youth Servs., __ F. 4th __, 2023 U.S. App. LEXIS 31902 (Dec. 4, 2023), Marlean Ames was demoted, denied a promotion, and then replaced by a gay man. Title VII protects individuals from discrimination based on sex, and this includes sexual orientation. Ames claimed “reverse” discrimination as a heterosexual female.
The district court entered summary judgment for the employer; the appellate court affirmed. Rejecting her claim, the Sixth Circuit applied an “add-on” to the basic McDonnell Douglas test that was first set forth by the D.C. Circuit in Parker v. B & O. R. Co., 652 F.2d 1012 (D.C. Cir. 1981). In Parker – a reverse race case – the court said that “[w]hites are also a protected group under Title VII, but it defies common sense to suggest that the promotion of a black employee justifies an inference of prejudice against white co-workers in our present society.” Id. at 1017. Thus, said Judge Mikva in Parker, for a reverse discrimination claim to proceed there must be “background circumstances” beyond the basic prima facie case. Applying Parker, the Ames court found no “background circumstances” permitted Ms. Ames’s case to proceed to trial.
Decades ago, the Seventh, Eighth and Tenth Circuits followed Parker. See, e.g., Mills v. Health Care Serv. Corp., 171 F.3d 450, 457 (7th Cir. 1999); Duffy v. Wolle, 123 F.3d 1026, 1036-37 (8th Cir. 1997); Reynolds v. School Dist. No. 1, 69 F.3d 1523, 1534 (10th Cir. 1995).
But the “background circumstances” requirement is not universally accepted. See Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1325 n.15 (11th Cir. 2011) citing Bass v. Board of Cnty. Comm’rs, 256 F.3d 1095, 1102-03 (11th Cir. 2001), overruled in part on other grounds by Crawford v. Carroll, 529 F.3d 961 (11th Cir. 2008) (“Discrimination is discrimination no matter what the race, color, religion, sex, or national origin of the victim.”); and Iadimarco v. Runyon, 190 F.3d 151, 159-161 (3d Cir. 1999)(“Stating the prima facie case in terms of ‘background circumstances’ and the uniqueness of the particular employer is both problematic and unnecessary.”)
Courts rejecting an “add-on” requirement looked to the Supreme Court’s affirmative action cases. Justice Scalia observed in Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 239, 115 S. Ct. 2097, 2119 (1995) (concurring opinion) that “[i]n the eyes of government, we are just one race here. It is American.” And in his plurality opinion in Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 289-90, 98 S. Ct. 2733, 2748 (1978), Justice Powell wrote that “[t]he guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color.”
So, we have a circuit split here, resurrected on the heels of the Supreme Court’s affirmative action decision last term in Students for Fair Admissions, Inc. (SFFA) v. President & Fellows of Harvard College (Harvard) and SFFA v. University of North Carolina (UNC). Is Ames the sort of case the Court might take on cert? It’s possible. The issue of whether an “add-on” requirement to McDonnell Douglas’s prima facie case is correct is not fact specific inquiry. And the Supreme Court does not like to focus on facts in a case. Facts are established by the “factfinder,” i.e., the trial court.
The take-away here? For employers, this is an easy one – please don’t focus on someone’s membership in a protected class. Focus on someone’s ability to perform the job. Employers who instead say (whether or not in an out loud voice) “this job is to be filled by a [insert the protected status of your choice here]” are likely to find their decision-making challenged. And, yes, that’s the way it is.