What HR leaders should know as the Supreme Court considers the background circumstances rule

The Supreme Court will hear initial arguments this week in the case of Ames v. Ohio Department of Youth Services, during which it will determine if a controversial proceeding rule will continue.

Catch up. Marlean Ames, a straight woman, sued her employer of 20 years, the Ohio Department of Youth Services, over claims that she was demoted because of her sexual orientation, HR Brew previously reported.

The case will determine if people in the majority who claim discrimination will need to meet the background circumstances rule, which says someone in the majority (in this case, a straight person) must meet a different threshold of proof of discrimination, than someone in the minority.

However, if Ames wins this case, it will not mean victory for her discrimination case. Her suit would likely go to the lower courts to determine if discrimination occurred.

“There’s three things that the court could do,” Julian Wolfson, an employment attorney at Littler told HR Brew. “The court could say, background circumstances test is okay, and then it wouldn’t go down [to lower courts]. The case would be over. It could say, no background circumstances ever should be considered or required, and eliminate background circumstances completely. Or a third, more narrow view would be to have [it as] an option, but not a requirement.”

The Biden administration previously supported Ames’ case in a brief filed last year, citing that Title VII should apply equally to everyone, and that people in the majority should not have different standards than those in the minority.

Big picture. The Ames case is being considered less than a year after the Muldrow v. City of St. Louis ruling made it easier for employees whose roles are changed against their wishes to sue for discrimination, HR Brew previously reported.

The ruling could impact how these “reverse discrimination” cases are handled moving forward, especially if the background circumstances rule is thrown out, according to Wolfson. “It essentially takes a tool out of the employer’s toolbox to defend against these claims.”