When considering how to prove statutory employment discrimination claims, and in particular those actions relying on so-called reverse discrimination, William R. Corbett has authored a crucial and timely article. In Reverse Discrimination: An Opportunity to Modernize and Improve Employment Discrimination Law, Professor Corbett reveals important and modern-day considerations regarding employment discrimination proof structures.
More importantly, the article identifies key points about those proof structures that the Supreme Court will have to face this term after granting certiorari on October 4, 2024 to hear Ames v. Ohio Dept. of Human Services to determine whether “a majority-group plaintiff must show ‘background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.’”
Over the last fifty years, the Supreme Court has forged an arduous trail in trying to create a clear methodology that can guide parties in how to prove statutory employment discrimination claims. Through interpreting statutory language that regulates an employer’s discriminatory actions via the plain words “because of” an employee’s protected class, the Court’s stilted framework has provoked a lot of scholarly criticism. (P. 172.)
Corbett joins those critiques by “cast[ing] doubt on the continuing confidence in and commitment to the [Court’s] analysis . . . after six decades of employment discrimination law.” (P. 179.) Corbett also provides an insightful and up-to-date review of the patchwork of Court decisions related to statutory employment discrimination proof structures and how those decisions require further clarity. (Pp. 167-73, 179.)
In one of its earliest cases interpreting Title VII of the Civil Rights Act of 1964, McDonnell Douglas v. Green decided in 1973, the Court constructed a unique pathway to identify the level of proof a plaintiff must offer to create an inference of intentional discrimination “because of” the protected class involved. In referring to this initial stage of proof as a prima facie case requirement to establish circumstantial evidence, the Court attempted to divine the initial elements that an employee must prove to allow that claim to proceed absent a responsive explanation from the employer.
The Court started by requiring that the plaintiff be a member of the protected class covered by Title VII. That was not difficult in McDonnell Douglas as the plaintiff was Black. The other requirements of the prima facie case included assertions that the employer refused to hire him based upon his race even though he had applied, was qualified, and the employer continued to seek candidates after rejecting the plaintiff’s application for employment. The McDonnell Douglas structure has become the sine qua non component in civil procedure motion practice involving statutory employment discrimination claims.
The Court agreed recently to hear Ames because of a circuit split over whether the prima facie case in a reverse discrimination case requires some additional background circumstances as proof before being able to infer intentional discrimination. Corbett provides helpful details to explain how and why the D.C. Circuit Court of Appeals “originated the background circumstances requirement” in 1981 by relying on historical race discrimination inferences for “disfavored groups” that is not present in a reverse discrimination claim. (P. 177.)
Corbett’s thesis addresses the uncertainty about inferences in reverse discrimination prima facie case analysis and asserts that Ames provides an opportunity for the Court to rid itself of the McDonnell Douglas analysis as a proof structure. Specifically, Corbett “urge[s] the Court, at long last, to take a reverse discrimination case as an opportunity to jettison the prima facie case . . . proof framework that the Court developed half a century ago in McDonell Douglas . . . as it has long since outlived its usefulness, and it has become an impediment to needed innovation in doctrine.” (Pp. 155-56.)
In an interesting discussion, Corbett also explores the possibilities or lack thereof in pursuing reverse discrimination claims beyond race, sex and national origin (for “American-born individuals”) to include reverse religion, age, or disability claims. (Pp. 175-76, 182.) This analysis begs the question of whether one can establish basic inferences regarding intentional workplace discrimination without also examining the unique context of reverse claims.
In Ames, the question of whether an employer has discriminated against a female employee based on sexual orientation for being heterosexual may have broader implications than just the proof structure. Nevertheless, as Corbett explains it so eloquently, the “context” matters. If so, then using a standard prima facie case for all discrimination claims without considering context neither helps those historically discriminated against nor those seeking so-called reverse discrimination claims in determining what level and type of proof they must establish to survive motion practice.
Corbett argues that it would be shortsighted for the Court in Ames to merely reject the additional requirement for reverse discrimination claims while maintaining the McDonnell Douglas structure. He refers to this approach as “an inferior solution” to rectify the “flaws” present from the McDonnell Douglas analysis (P. 182.)
Instead, Corbett argues that the Court should seize this opportunity to adopt a suggestion that Professor Charles Sullivan initially proposed in 2004 that has even more resonance in today’s anti-diversity climate. That suggestion would require courts to “just consider whether any plaintiff has produced sufficient evidence of discrimination” in ruling on motions to dismiss and for summary judgment. (P. 181.) Plaintiffs could draw from a “nonexhaustive list” of evidence from prior cases to show there is sufficient evidence present to prove discrimination. (P. 184.)
Whether the Court will issue a decision addressing what Corbett invites them to do is uncertain. Because he makes it so clear at this important moment as to why the Court should consider his proposal, this is an article that I like a lot and believe you will find it of value as well. And even if the Ames Court does not directly address his suggestion, the lower courts can still pursue his proposal in later lawsuits.
