SCOTUS Weighs Easing Standards for Reverse Discrimination Lawsuits

The U.S. Supreme Court began its 2024-25 term this week after agreeing to consider whether an employee claiming discrimination on the basis of her heterosexuality must offer evidence of broader discrimination involving other heterosexual employees.

A split in the courts: In Ames v. Ohio Department of Youth Services, the plaintiff, a heterosexual woman reporting to a gay supervisor, claimed she was denied a promotion in favor of a less qualified gay woman. 

• The Sixth Circuit held that members of a majority group (e.g., white, male, heterosexual) can only pursue a discrimination claim if they show “background circumstances” to support the claim that the employer discriminated against them.

• While the circuits are split, most do not require a “background circumstances” showing by a majority party, and none require it of minorities. 

Potential impact: If the Court strikes down the requirement for enhanced proof, as is expected, it will only impact the few circuits that require it. Nevertheless, the case arises at a time when reverse discrimination claims are increasing, potentially encouraging more lawsuits.

A light employment docket (so far): As of now, there are few significant employment cases the Court has decided to hear. 

• E.M.D. Sales, Inc. v. Carrera will determine the burden of proof that employers must meet to show that an employee is exempt under the FLSA.

• Stanley v. City of Sanford, FL will decide whether workers who left the job market because of a disability can lodge an ADA case over post-employment benefits.

More to come (eventually): While it remains to be seen whether more employment cases will be added this term, there are a number of issues wending their way though the courts that could result in blockbuster decisions down the road. 

• Court rulings the past two years have opened the door for increased attacks against the administrative state. 

• Challenges to the constitutionality of the NLRB and its recent pro-labor rulings will be among the most noteworthy.