Roughly five years ago, Marlean Ames sued her employer for discrimination. According to her performance evaluations, she was a competent employee working to promote the Prison Rape Enforcement Act at the Ohio Department of Youth Services. Yet, she was refused a position she was qualified for (a fact her employer does not make much effort to dispute), demoted, and both the position she applied for as well as her most recent position were filled by LGBTQ+ individuals. To Ames, this felt like a case of workplace discrimination, being denied an opportunity and treated disadvantageously solely on the basis of her sexual orientation. Ames argued that she was discriminated against because she was straight. However, the district court ruled against her, instead granting summary judgment for the defendant and opining that Ames failed to establish a prima facie case—a case sufficiently established by a party’s evidence to justify a favorable verdict, provided the other party gives no rebuttal. After the Sixth Circuit Court of Appeals upheld the district court’s decision, the Supreme Court granted certiorari and heard Ames v. Ohio Department of Youth Services (2025) this past February, though a decision has yet to be released. 

Ames’ discrimination suit is atypical. Almost ubiquitously, it is queer individuals constituting the minority, not their straight counterparts, who face rampant discrimination and homophobia in the workplace. Moreover, that trend persists across most if not all classes protected by Title VII of the Civil Rights Act of 1964; discrimination most often harms racial minorities, sexual minorities, religious minorities, etc., not majority groups. But, what bearing, if any, should that have on Ames’ case? Should discrimination against majority groups be treated differently than discrimination against minority groups under the law? The Sixth Circuit has argued that there should be a distinction in how the law treats these two types of discrimination cases in their ruling against Marlean Ames, but that sentiment isn’t shared across the federal court circuits. This article argues that the variation in courts’ approaches to majority group discrimination is not justified, and, as such, the Supreme Court should decide in favor of Ames.

Legal Background

The case of Ames v. Ohio Department of Youth Services highlights a conflict among the twelve federal court circuits regarding the treatment of “reverse discrimination” cases in which the victim is part of a majority group. The Sixth Circuit held that plaintiffs in reverse discrimination cases must prove four legal elements in order to make a prima facie case. Those four elements (in their current form) were established in the DC Circuit Court of Appeals’ decision in Parker v. Baltimore & O. R. Co. (1983), and are as such: 

(i) background circumstances support the suspicion that the defendant is that unusual employer who discriminates against the majority; (ii) that the petitioner applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite the petitioner’s qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications.

The root of the previously mentioned inter-circuit disagreement lies in the first element of these four: the requirement to provide background circumstances. Essentially, this element requires employees belonging to majority groups—e.g. White, male, heterosexual, etc.—to show further trends of discrimination against their majority group outside of their specific case. Ames, although she succeeded in proving the latter three elements, failed to establish background circumstances, and consequently the lower courts ruled in favor of her employer. 

The requirement to demonstrate background circumstances is not a requirement applied to  plaintiffs belonging to minority groups, and it isn’t standard outside of the Sixth Circuit. For seven out of twelve circuits of the federal courts of appeals, the background circumstances element was either explicitly rejected or has otherwise not been followed. In these jurisdictions, in order for a plaintiff belonging to a majority group to prove a prima facie case, they must only establish elements ii, iii, and iv. The Supreme Court’s decision in Ames v. Ohio Department of Youth Services must clarify which procedure to prefer: the background circumstances approach, which places a higher burden on majority group plaintiffs to compensate for a lack of historical precedent, or the alternative approach, which treats cases of discrimination against minority and majority groups equally. At its core, this case poses the question: is the background circumstances criterion, which only applies to cases of discrimination against individuals belonging to majority groups, justified? I argue the negative. The court in Parker v. Baltimore erred in establishing the background circumstances criterion, misinterpreting precedent and placing a higher legal burden on Marlean Ames than is justified.

The Argument for the Background Circumstances Criterion

The foundation for the four-element Parker v. Baltimore & O. R. Co. prima facie workplace discrimination test lies in the Supreme Court’s 1973 decision in McDonnell Douglas Corp. v. Green. In the majority opinion, the court opined that the Black man who alleged discrimination had to show the following four elements: 

“(i) he belongs to a racial minority; (ii) he applied and was qualified for a job the employer was trying to fill; (iii) though qualified, he was rejected; and (iv) thereafter the employer continued to seek applicants with complainant’s qualifications.” 

When the DC Court of Appeals in Parker was faced with a White man alleging the same discrimination, the first prong of this test—belonging to a racial minority—was not met. This incompatibility served as the Court’s first justification for modifying the test to establish the background circumstances element as a replacement prong. Because the White plaintiff in Parker did not belong to a racial minority (and because the McDonnell test had been altered in precedent cases), the Court decided that the first element of the McDonnell test should be replaced. The Court’s second justification for the introduction of the background circumstances element in Parker relied on the Supreme Court’s decision in Furnco Construction Corp. v. Waters (1978). Interpreting an excerpt from the Furnco opinion, the Court in Parker argued that the original four-pronged test established by McDonnell Douglas Corp. v. Green was entirely based on the assumption that the employee was socially disfavored. Thus, employees who are not socially disfavored—i.e. majority groups—must meet an additional burden.

Where the Court Erred

The DC Court’s first reason in Parker v. Baltimore & O. R. Co. for the introduction of the background circumstances prong, that the plaintiff did not belong to a racial minority and therefore the McDonnell Douglas test must be altered, was not a sufficient rationale for their decision. Although majority groups plainly do not belong to minority groups and although the test established in McDonnell Douglas Corp. v. Green was “never intended to be rigid, mechanized, or ritualistic,” the complete rewriting of the test’s first element was not justified. The only other cited instance of modification to the test was performed by the same DC Circuit Court of Appeals, and it was minimal: the McDonnell Douglas test, which originally governed “discriminatory refusal to hire,” was applied to a case of “discriminatory refusal to promote.” Moreover, the U.S. Supreme Court in McDonnell Douglas made its intentions in establishing the original legal test clear, directly emphasizing how, “[d]iscriminatory preference for any group, minority or majority, is precisely and only what Congress has proscribed.”  Accordingly, the various alternative approaches to reverse discrimination cases taken by most federal courts of appeals today (see footnote 1) should be preferred, as they more closely align with the Supreme Court’s original intent to ensure equivalent treatment of minority and majority groups.

Nevertheless, the DC Court in Parker would counterargue that this article’s interpretation of the Supreme Court’s intent is not the full picture. As discussed prior, the Court cited the Supreme Court’s decision in Furnco as evidence that belonging to a minority group was inherently necessary to the McDonnell Douglas test’s validity. They argue that the use of the phrase, “in light of common experience,” in Furnco (see footnote 2) implies that the only reason a court would infer discriminatory motive for an otherwise unexplained act is if the plaintiff belonged to a “socially disfavored” group. The court argues that, given the historical context, the purpose of Title VII of the Civil Rights Act of 1964 was to protect minority groups, and the McDonnell Douglas test is predicated on that history.

That implication would potentially be sound had the Furnco opinion not further clarified this vagueness in the following sentences. Immediately following this cited excerpt, the Supreme Court wrote that, “we are willing to presume [discriminatory motive] largely because we know from our experience that more often than not people do not act in a totally arbitrary manner, without any underlying reasons, especially in a business setting.” That is, the court presumes discriminatory motive not because of membership of a socially disfavored group but instead because, at this point in the legal process, the employer has provided no other legitimate reason for their decision, and it is extremely unlikely that they had no reason at all. Thus, the court presumes that the only relevant reason would be discriminatory. This logic does not imply that a plaintiff must necessarily belong to a minority group; instead, as the Supreme Court specifies, it implies that once a prima facie case has been made by a plaintiff (of any demographic), “the burden which shifts to the employer is merely that of proving that he based his employment decision on a legitimate consideration, and not an illegitimate one such as race.” In fact, the majority in Furnco largely reads as indifferent to reverse discrimination cases, and the remainder of the opinion focuses not on the plaintiff’s identity but on the plaintiff’s burden, explicitly underscoring that, “[t]he importance of McDonnell Douglas lies not in its specification of the discrete elements of proof there required, but in its recognition of the general principle that any Title VII plaintiff must carry the initial burden of offering evidence,” and that, “[t]he central focus of the inquiry in a case such as this is always whether the employer is treating ‘some people less favorably than others because of their race, color, religion, sex, or national origin.’” It was unfounded for the Court in Parker to interpret Furnco’s lack of emphasis on the plaintiff’s minority status as anything else. Furthermore, looking at the line of precedent, the Supreme Court’s stance on the purpose of Title VII has been consistent and not aligned with the DC Court’s understanding. In the opinion in McDonald v. Santa Fe Trail Transp. Co. (1976), the Court offered its clearest view on this matter, placing glaring emphasis on the protection of a majority group (i.e. White men) and opining that, “Title VII prohibits racial discrimination against the white petitioners in this case upon the same standards as would be applicable were they Negroes and Jackson white.” Overall, it is clear that the Court in Parker misrepresented the Supreme Court’s intent with its misinterpretation of the phrase, “in light of common experience” and ignorance of other mounting precedent.

Conclusion

The Sixth Circuit’s decision in Parker to reinvent the McDonnell Douglas test was a decision to stray away from both legal precedent and the legislative intent at the heart of Title VII of the Civil Rights Act of 1964. The lower courts’ decision in Ames to uphold the added burden of the background circumstances criterion is equally incorrect. While perhaps justified in academic settings, the use of the term “reverse discrimination” itself in the legal field has inherently discriminatory consequences; up until now, distinguishing between typical discrimination cases and reverse discrimination cases at the prima facie stage, regardless of the intent behind that distinction, has only caused majority groups to face unequal treatment in employment disputes under the precedent set by the DC Circuit Court of Appeals in Parker v. Baltimore & O. R. Co. The Supreme Court’s upcoming decision in Ames v. Ohio Department of Youth Services can, and likely will, change that. 

However, as the Supreme Court hears the case of Ames, it is important to recognize that a decision in favor of Ames would not signify that she was discriminated against. Rather, the decision would mean that she succeeded in establishing a prima facie case, necessitating a response from her employer. The argument put forth in this article for the elimination of the background circumstances criterion is an argument for the elimination of an unjustified barrier to justice, a barrier faced only by people with select identities. With that said, however, it is also important to consider beyond the legal impacts of such a decision. In our current political climate, it is easy to see how giving credence to reverse discrimination cases and placing them on the same level as discrimination cases involving minority groups would fuel harmful narratives that attack diversity efforts such as DEI programs. Promoting diversity is still important. This piece simply argues that the end cannot justify the means, that we must promote diversity in a way that does not unfairly burden majority groups in the legal setting. The remaining question, then, is: how?