Sixteen years ago, Justice Scalia warned of an “evil day on which the [Supreme] Court will have to confront the question: Whether, or to what extent, are the disparate-impact provisions of Title VII of the Civil Rights Act of 1964 consistent with the Constitution’s guarantee of equal protection?”1 That evil day approaches.2 Last Term, in Ames v. Ohio Department of Youth Services,3 the Court braced for it by reaffirming seminal disparate impact doctrine and a colorblind, anticlassification vision of equal protection.4 The Court repudiated the Sixth Circuit’s “background circumstances” rule,5 which imposed a heightened evidentiary burden on majority-group plaintiffs alleging employment discrimination under Title VII.6 The surprisingly succinct opinion for a surprisingly unanimous Court rested solely on Title VII’s text and the Court’s Title VII precedents,7 which the Court took to mean that majority-group plaintiffs cannot be treated differently from minority-group plaintiffs.8 But the Court’s embrace of a formalist, symmetrical Title VII was an implicit embrace of a formalist, symmetrical Equal Protection Clause.9 In rejecting the background circumstances rule, the Court put Title VII disparate impact doctrine (that is, liability for facially neutral actions that have a discriminatory impact10) on firmer constitutional footing, but further jeopardized an antisubordination vision of antidiscrimination law.
In 2019, Marlean Ames, a heterosexual woman,11 applied for a promotion.12 She had worked at the Ohio Department of Youth Services since 2004, starting as an Executive Secretary, earning a promotion to Community Facility Liaison in 2009, and working her way up to an Administrator in 2014.13 When the Department created a new Bureau Chief position in 2019, Ames interviewed for the job.14
The Department decided not to promote Ames.15 With input from Ames’s direct supervisor (a gay woman),16 the Department’s Director (a straight man)17 and Assistant Director (a straight woman)18 determined Ames — despite her generally positive performance reviews19 — lacked the “vision” and “leadership skills” for the new position.20
Ames was then demoted.21 Shortly after Ames interviewed for the promotion, the Director and Assistant Director decided to dismiss Ames from her current role because of her lack of vision, slow disbursal of grant funds, and the Department’s new priorities.22 The Department offered Ames a demotion, which she took.23 It then selected a gay man as Ames’s replacement and later chose a gay woman for the Bureau Chief role for which Ames was passed over.24
In November 2020, Ames filed a complaint in the Southern District of Ohio, alleging sexual orientation discrimination under Title VII on the basis of her status as a heterosexual.25
In an unpublished opinion, the district court granted the Department’s motion for summary judgment.26 The court applied the three-step McDonnell Douglas Corp. v. Green27 framework for evaluating Title VII disparate treatment claims, under which an employee “bears the initial burden of establishing a prima facie case of” employment discrimination.28 Typically, to make out a prima facie case of discrimination at the first step of McDonnell Douglas, a plaintiff must demonstrate she (1) was a “member of a protected class; (2) . . . suffered an adverse employment action; (3) . . . was qualified for the position; and (4) . . . was treated differently than similarly-situated, non-protected employees.”29 If she succeeds in establishing a prima facie case, the burden of production shifts to the employer to demonstrate “a ‘legitimate, nondiscriminatory reason’ for its actions.”30 If the employer provides a nondiscriminatory rationale, the burden then shifts back to the employee to show the employer’s “proffered reason was a mere pretext for discrimination.”31
The district court’s analysis of Ames’s sexual orientation discrimination claim turned on the Sixth Circuit’s “background circumstances” rule, which imposed a heightened evidentiary burden on members of majority groups.32 To establish the first element of the prima facie case, the Sixth Circuit required that “a plaintiff alleging reverse discrimination . . . show that ‘background circumstances support the suspicion that the defendant is that unusual employer who discriminates against the majority.’”33
The court found that Ames failed to adduce sufficient evidence of background circumstances in either the denial of her promotion or her demotion.34 Specifically, Ames failed to show “statistical evidence of past reverse discrimination,” employer policies reflecting a preference for LGBTQ+ employees, or evidence that “the decisionmakers behind her demotion . . . were members of the LGBTI community.”35
On appeal, the Sixth Circuit affirmed.36 In a per curiam opinion, the court agreed Ames did not make the requisite showing of background circumstances on her sexual orientation discrimination claim.37
Judge Kethledge concurred.38 He agreed with the court’s application of the background circumstances rule, precedent the “panel [was] bound to apply,” but disagreed with the rule itself.39 Citing the text of Title VII, Judge Kethledge maintained that “[t]he statute expressly extends its protection to ‘any individual’; but our interpretation treats some ‘individuals’ worse than others — in other words, it discriminates — on the very grounds that the statute forbids.”40 Noting a circuit split on the background circumstances rule, which five circuits had adopted and seven had not, Judge Kethledge expressly invited the Supreme Court to weigh in.41
Accepting Judge Kethledge’s invitation, the Supreme Court vacated the judgment below and remanded the case for further proceedings.42 Writing for a unanimous Court, Justice Jackson stated that the background circumstances rule was “consistent with [neither] Title VII’s text [n]or [the Court’s] case law construing the statute.”43 The rule diverged from the statute’s text, Justice Jackson wrote, because “Title VII’s disparate-treatment provision draws no distinctions between majority-group plaintiffs and minority-group plaintiffs,” meaning “Congress left no room for courts to impose special requirements on majority-group plaintiffs alone.”44 The Court reinforced its reading of Title VII by looking to the gloss offered by prior cases interpreting the statute: namely, Griggs v. Duke Power Co.45 and McDonald v. Santa Fe Trail Transportation Co.,46 which the Court cited for the proposition that Title VII contemplated the “same standards” for proving discrimination against members of majority and minority groups.47
Furthermore, Justice Jackson held that the background circumstances rule could not be squared with the McDonnell Douglas standard. She wrote: “This Court has repeatedly explained that the ‘precise requirements of a prima facie case [under McDonnell Douglas] can vary depending on the context and were “never intended to be rigid, mechanized, or ritualistic,”’”48 an “admonition” the Sixth Circuit “disregard[ed] . . . by uniformly subjecting all majority-group plaintiffs to the same, highly specific evidentiary standard in every case.”49 Ohio’s arguments to the contrary — that the background circumstances requirement was not a requirement at all, but merely “another way of asking whether” an adverse employment action was made “because of a protected characteristic” — directly contradicted the Sixth Circuit’s mechanical application of the evidentiary test.50 Because of the rule’s atextuality, asymmetric burden on majority-group plaintiffs, and rigidity, the Court vacated the Sixth Circuit’s judgment and remanded to the courts below.51
Justice Thomas concurred.52 Writing “to highlight the problems that arise when judges create atextual legal rules,” Justice Thomas said he “would be willing to consider whether the McDonnell Douglas framework [itself] is a workable and useful evidentiary tool.”53 He began by enthusiastically agreeing with the Court that the background circumstances rule “lacks any basis in the text of Title VII.”54 But he went further. In a footnote, he argued that “[t]he ‘background circumstances’ rule is also plainly at odds with the Constitution’s guarantee of equal protection,”55 citing the Court’s decision in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College56 (SFFA).57 In that case, the Supreme Court ratified anticlassification theory — the idea that equal protection harm results from the government’s classification of individuals by their protected characteristics, as opposed to the harm resulting from de facto subordination on the basis of those characteristics — in the Title VI and Fourteenth Amendment contexts.58 Justice Thomas also argued “the ‘background circumstances’ rule is emblematic of the serious challenges that can arise when judges invent atextual requirements”59 — for instance, how to determine when an individual is a member of a majority group in the absence of “underlying legal authority” capable of “resolv[ing] doctrinal ambiguities.”60 Pushing that logic, Justice Thomas cast doubt on McDonnell Douglas, suggesting it “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.”61 And he stated that lower courts may “proceed without the . . . framework” at their discretion.62
Although Ames was not a constitutional case, Justice Jackson’s opinion, Justice Thomas’s concurrence, and the parties’ briefing and argumentation bore the unmistakable imprint of the Court’s anticlassification equal protection jurisprudence.63 In discarding the background circumstances rule, Justice Jackson may have been gathering ammunition for the bigger battle to come — the “evil day” when Title VII disparate impact liability and the Equal Protection Clause collide.64 Ames did not fully resolve that doctrinal tension — far from it — but Justice Jackson’s argumentative moves may put disparate impact liability on firmer ground. Nonetheless, in triaging disparate impact, the Court departed ever further from the underlying purpose of Title VII as a tool to redress “the secondary social status of historically oppressed groups,”65 and further from the ongoing realities of employment discrimination.66
The principles of equal protection suffused the parties’ argumentation and Court’s decision. In the words of Petitioner Ames: “[A]t the heart of this case, at bottom, all Ms. Ames is asking for is equal justice under law.”67 Title VII, the Court affirmed, “draws no distinctions between majority-group plaintiffs and minority-group plaintiffs.”68 Nor does “the [evidentiary] standard for . . . disparate treatment under Title VII . . . vary based on whether or not the plaintiff is a member of a majority group.”69 All the Justices and all the parties were, in the words of Justice Gorsuch, “in radical agreement” on this point.70
The background circumstances requirement may well be incompatible with existing equal protection doctrine. Government distinctions on the basis of individuals’ protected characteristics are subject to heightened scrutiny under the Equal Protection Clause,71 and judge-made law is not exempt from constitutional constraints.72 Several scholars have suggested that, by imposing a heightened evidentiary burden on majority-group plaintiffs, the background circumstances rule is a government distinction based on individuals’ protected characteristics.73 Consequently, background circumstances would be subject to heightened scrutiny. Some disagree, pointing out that the first element of the McDonnell Douglas prima facie case itself asks whether a plaintiff “belongs to a minority group,”74 and the background circumstances test is merely the means by which majority-group members establish “circumstances . . . similar to those faced” by minority-group members.75
Justice Jackson avoided a direct confrontation with these constitutional issues by repudiating background circumstances on statutory grounds as incompatible with the Court’s gloss on Title VII.76 Crucially, in so doing, Justice Jackson cited to Griggs — the landmark case that established disparate impact liability under Title VII77 — for the proposition that “[d]iscriminatory preference for any group, minority or majority, is precisely and only what Congress has proscribed.”78 While disparate impact claims are not cognizable under the Equal Protection Clause,79 Griggs, and then the Civil Rights Act of 1991,80 created liability under Title VII for disparate impact.81 The upshot: The background circumstances rule “flouts th[e] basic principle” “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.”82 In other words, Title VII — and Griggs — embrace a symmetrical view of discrimination vis-à-vis reverse discrimination, and so Title VII — and Griggs — are compatible with an anticlassification Equal Protection Clause.
Although Ames was a disparate treatment case, Justice Jackson’s reliance on Griggs may gird disparate impact doctrine against equal protection challenges. There have long been rumblings that a challenge to disparate impact doctrine could wind its way to the Court,83 rumblings that have increased in intensity in recent years.84 As Justice Scalia argued, equal protection may bar disparate impact liability where such liability would require employers to use affirmative action to benefit the negatively impacted class — and, consequently, to classify on the basis of protected classes.85
Justice Jackson’s reliance on Griggs may delay an equal protection challenge to disparate impact liability in at least three ways. First, by resorting to Griggs for the proposition that antidiscrimination law protects members of all groups — minority and majority — on equal terms,86 Justice Jackson positioned herself to argue not only that disparate impact and an anticlassification theory of antidiscrimination law are compatible, but also that Griggs is itself an anticlassification case. Second, citing to Griggs for that anticlassification principle kept the opinion grounded in statutory rather than constitutional precedent, (temporarily) averting Justices Thomas and Gorsuch’s apparent enthusiasm to import SFFA’s constitutional anticlassification principle into the Title VII context.87 Finally, citing to a case can ward off arguments that it is no longer good law,88 and Griggs had not been cited by the Court since 2015 (and only then in an opinion from which Chief Justice Roberts and Justices Scalia, Thomas, and Alito dissented).89 Although Griggs is no longer strictly necessary for maintaining disparate impact after Congress codified disparate impact in Title VII,90 reaffirming disparate impact’s implicit role in antidiscrimination law could buttress it against constitutional attacks.
But the deep doctrinal tension between Title VII disparate impact liability and an anticlassification Equal Protection Clause remains. Disparate impact is an antisubordination, not anticlassification, doctrine. Among Congress’s animating purposes in enacting Title VII was the amelioration of employment discrimination against historically marginalized groups.91 As Senator Hubert Humphrey, a sponsor of the Civil Rights Act of 1964, expressed: “The crux of the problem is to open employment opportunities for Negroes in occupations which have been traditionally closed to them. . . . Title VII is designed to give Negroes . . . a fair chance to earn a livelihood and contribute their talents to the building of a more prosperous America.”92 The Court has expressly embraced this antisubordination reading of Title VII, including in Griggs, in which Chief Justice Burger wrote that Title VII’s purpose:
was to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees. Under the Act, practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to “freeze” the status quo of prior discriminatory employment practices.93
The underlying purpose of disparate impact is to challenge subordination — not classification.
Moreover, the McDonnell Douglas prima facie case is, at its core, an empirical presumption that tells courts they can infer discrimination from circumstantial evidence such as disparate outcomes.94 The background circumstances test emerged from the prima facie case’s empirical approach: Because discrimination remains asymmetrical — LGBTQ+ individuals, as a matter of empirical fact, “experience discrimination at higher rates than their cisgender and heterosexual peers,” including in the workplace,95 and the same is true for women and racial minorities96 — any evidentiary test ought to reflect that empirical asymmetry. In barring such asymmetry, Ames further eroded antidiscrimination law’s antisubordination goals.
In attempting to reconcile disparate impact and equal protection doctrines in preparation for Justice Scalia’s “evil day,”97 the Court has risked jeopardizing an antisubordination vision of antidiscrimination law. The Court ought to heed Professor Richard Primus’s words of caution: “Abandoning that historical orientation” — that Title VII was meant to end social hierarchies in employment — “in an attempt to rescue the doctrine might sacrifice the very thing that is most worth saving.”98