Do you have to be in the minority to file discrimination cases?

The Supreme Court sent the case of an Ohio woman who contends that she was the victim of reverse discrimination back to the lower courts. In a unanimous ruling by Justice Ketanji Brown Jackson, the justices agreed that a federal appeals court in Cincinnati was wrong to impose a higher bar for the case brought by Marlean Ames to move forward than if Ames had been a member of a minority group. 

The dispute began in 2019, when Ames applied for a new position within the department. Not only did she not get that job, but she was also demoted to a previous position, where her hourly salary was just over half of what she had previously been making. 

The Supreme Court has outlined a three-step test for discrimination claims. At the first step – the one at issue in Ames’s case – a plaintiff must produce enough evidence to support an inference that the employer intended to discriminate. This is generally, Jackson wrote, not a high bar: “A plaintiff may satisfy it simply by presenting evidence ‘that she applied for an available position for which she was qualified, but was rejected under circumstances which give rise to an inference of unlawful discrimination.’”

The Supreme Court’s cases, Jackson added, also make clear that the test for showing discrimination in a case like Ames’s “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,” she concluded. 

Justice Clarence Thomas filed a concurring opinion that was joined by Justice Neil Gorsuch. Thomas suggested that the three-step test that the court has developed to use in discrimination claims – known as the McDonnell Douglas framework – “lacks any basis in the text of” federal employment discrimination law “and has proved difficult for courts to apply.” “In a case where the parties ask us to do so,” he concluded, he “would be willing to consider” overruling it. This decision should prompt HR teams to revisit their internal processes.