U.S. Supreme Court’s Recent Clarification of Evidentiary Burdens in Discrimination Cases

Ames is immediately remarkable for the fact that it is a rare unanimous decision from our current divided SCOTUS. In Ames, SCOTUS overruled the “background circumstances” rule previously applied to discrimination claims that, until Ames, required members of “majority groups” (e.g. white, heterosexual, Christian, etc.) to provide extra evidence as to “background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority” in order to proceed on disparate-treatment claims.

In plain English, Ames overruled the requirement that majority groups must provide moreevidence than minority groups to prove that they were victims of discrimination under Title VII.

In principle, it is easy to see why this was a unanimous decision. Discrimination is reprehensible regardless of whether the victim was black or white, straight or gay, Hindu or Christian, etc.  There’s nuance in the ruling that compels us to wonder if the outcome of this decision will be a net positive, despite its reasoning being undeniably sound.

For one, until Ames, there was a legal presumption that the overwhelming majority of people do not discriminate against categories to which they themselves belong. For instance, in a case where a white male was terminated by another white male, the alleged victim would need to provide extra proof in order to claim that race-based or gender-based discrimination played any role in the decision to fire the employee. Under Ames, this extra step is no longer permissible.

“But so what? That’s equality, baby!” Sure, in theory. But in practice, employment lawyers – and far too many good and decent employers – are painfully aware of just how easy it is for a disgruntled former employee to plead a prima facie claim of discrimination, for no other reason than to get back at an employer they feel slighted by. Making the bar for such claims even lower is absolutely going to lead to more frivolous litigation. Ames may kick open the proverbial barn door for discrimination lawsuits that take the form of “my white manager discriminated against me for being white” is nigh Kafkaesque.

Under Ames, we fully expect to see “disparate treatment discrimination” added to the usual litany of frivolous, retaliatory claims employees lob behind them like a grenade on their way out the door. So, while ideologically sound, the Ames decision is going to produce a logistical nightmare for attorneys and employers alike, who can look forward to a glut of lawsuits from white heterosexual Christian men who feel they were discriminated against… by other white heterosexual Christian men.

Again, we cannot stress enough that the Ames decision is ideologically sound; discrimination is inexcusable, regardless of who it is directed against. Our only objections are to the practical consequences Ames may have for the American workplace, which consequences will doubtless include even more retaliatory nuisance-litigation from disgruntled former employees looking for revenge or money. We also have apprehension about legislation intended to protect minority groups – e.g. Title VII, the Florida Civil Rights Act, etc. – being wielded as a cudgel against them, but we’ll leave that part for your Substack philosophy feed to sort out. See you next time - and reach out if you’d like to discuss how this opinion may impact your workplace.