SCOTUS Argument Recap: Court Appears Likely to Eliminate Heightened Prima Facie Burden for Majority Group Plaintiffs Under Title VII

Seyfarth Synopsis: In a recent oral argument, the Justices seemed largely aligned with the plaintiff’s position that majority and historically disadvantaged groups should face the same prima facie test under Title VII.

As Seyfarth previewed in its recent SCOTUS Employment Law Roundup, on February 26, 2025, the Supreme Court has heard oral argument in Ames v. Ohio Department of Youth Services.  In this appeal, the Court granted cert to decide whether the Sixth Circuit’s requirement of a heightened standard for “majority” group plaintiffs in Title VII discrimination cases—a showing, in addition to the usual elements of a prima facie case of discrimination, of “background circumstances” to support an inference that the employer is the “unusual employer who discriminates against the majority"—is consistent with the statutory language and objectives animating Title VII non-discrimination mandate. 

At argument, the justices indicated broad agreement that the “background circumstances” test for “majority” group plaintiffs is incompatible with Title VII.  Indeed, even counsel for Respondent (the Ohio Department of Youth Services) agreed with Petitioner’s essential argument that the Sixth Circuit erred in holding certain categories of Title VII plaintiffs (in this case, straight persons) to a higher standard than others (e.g., LGBTQ+ persons). And, after a lengthy back-and-forth with the justices, Respondent’s counsel conceded that all parties must be subject to the same evidentiary rubric for establishing claims under Title VII. Indeed, at one point during the argument, Justice Gorsuch remarked that there appeared to be “radical agreement” between the parties on this score.

Nonetheless, Respondent’s counsel urged the justices to affirm the Sixth Circuit’s judgment on narrow grounds, arguing that, irrespective of the court’s application of the “background circumstances” standard, Petitioner below had failed to point to sufficient evidence that any adverse employment actions she experienced were the product of animus on the basis of her sexual orientation.  On the whole, though, the justices seemed unreceptive to the invitation, and they appeared inclined to remand the case to let the Sixth Circuit.

Given the tenor of the justices’ questions and the concessions made by Respondent’s counsel at oral argument, we think it reasonable to expect that the “background circumstances” test’s days are numbered. In its wake, employers should prepare themselves for a potential rise in the number of “reverse discrimination” claims on the horizon. 

If you have any questions on these developments, we encourage you to reach out to the Seyfarth attorney with whom you work.