The McDonnell Douglas standard, established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), is a burden shifting framework used to evaluate claims of employment discrimination. This standard applies to claims under Title VII of the Civil Rights Act of 1964, the New York State Human Rights Law (NYSHRL) and other related statutes.

Under the McDonnell Douglas framework, a plaintiff must first establish a prima facie case of discrimination by demonstrating: (1) they are a member of a protected class; (2) they were qualified for their position; (3) they suffered an adverse employment action; and (4) the adverse action occurred under circumstances giving rise to an inference of discrimination. The burden to establish a prima facie case is generally described as minimal or "de minimis."

Once the plaintiff establishes a prima facie case, a presumption of discrimination arises and the burden of production shifts to the employer to articulate a legitimate, nondiscriminatory reason for the adverse employment action. If the employer provides such a reason, the presumption of discrimination disappears, and the burden shifts back to the plaintiff to demonstrate that the employer's stated reason is a pretext for discrimination. The ultimate burden of proving intentional discrimination remains with the plaintiff throughout the process.

In Ames v. Dept of Youth Services, the plaintiff, a heterosexual woman, was denied a promotion and demoted. She alleged sexual orientation discrimination under Title VII claiming that the promotion was awarded to a lesbian, and the position from which she was demoted was reassigned to a gay man.

The trial court and the Sixth Circuit Court of Appeals rejected her claims. They applied a heightened standard of proof to her prima facie case under the McDonnell Douglas rubric. Specifically, they applied a rule, the background circumstances rule, which requires certain Title VII plaintiffs—those who are members of majority groups—to satisfy a heightened evidentiary standard in order to carry their burden under the first step of the McDonnell Douglas framework.

The "background circumstances" rule in the context of the McDonnell Douglas standard for employment discrimination claims refers to an additional requirement applied in certain "reverse discrimination" cases. Specifically, when a plaintiff alleging reverse discrimination (discrimination against a majority group) seeks to establish a prima facie case under the McDonnell Douglas framework, courts may require the plaintiff to demonstrate "background circumstances" that support the suspicion that the employer is one of the unusual entities that discriminates against the majority. Such evidence may include, for example, that a member of the minority group made the employment decision or statistical evidence of a pattern of discrimination against members of the majority group.

In Ames, a unanimous Supreme Court rejected the principle that there is a higher standard of proof in reverse discrimination cases. Ames holds that as a textual matter, Title VII’s disparate treatment provision draws no distinctions between majority group plaintiffs and minority group plaintiffs. Rather, the provision makes it unlawful “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual… The court highlighting the term individual as opposed to protected class or group.

By establishing the same protections for every “individual”—without regard to that individual’s membership in a minority or majority group—Congress left no room for courts to impose special requirements on majority-group plaintiffs alone.

Note there is a subtle difference in how the Ames Court describes the McDonnell Douglas prima facie case, and the standard description of that framework. In her opinion, Justice Jackson describes the McDonnell Douglas prima facie case as: "that she applied for an available position for which she was qualified but was rejected under circumstances which give rise to an inference of unlawful discrimination.”  The first element of the prima facie case (member of a minority group) is absent.

Also of note, Justice Thomas (with Justice Gorsuch joining) wrote a concurrence that criticized both the background circumstances rule and the McDonnell Douglas framework as “judge made” rules that are not based in the text of the statute. Justice Thomas was particularly critical of the application of the McDonnell Douglas framework in the summary judgment context, because in his view it does not align with the applicable requirements of FRCP Rule 56 which governs summary judgment.

The courts in New York, including the federal courts, had not applied the background circumstances rule. So, Ames does not change the law in New York. However, given that this was a unanimous Supreme Court decision supporting a “reverse discrimination” claim in an environment that has turned critical of diversity actions, it is likely to lead potential plaintiffs and plaintiffs’ attorneys to pursue such claims across the spectrum. Trained decision-makers applying policies that support legitimate business objectives are critical to employers’ defense of any discrimination claims. In light of the Ames decision, that fundamental principle remains more important than ever.

For more information, please contact Thomas Eron or any attorney in Bond’s labor and employment practice or the Bond attorney with whom you are regularly in contact.

On June 29, 2023, the U.S. Supreme Court issued its long-awaited decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College.[1] The Court considered the admissions practices of Harvard College and University of North Carolina (UNC) and found that neither could withstand the “strict scrutiny” demanded for race-based admissions decisions. Although nominally about these two particular admissions programs, the Court’s rationale for its ruling leaves virtually no possibility that race-based admissions practices will withstand judicial challenge.

Read More >> Race in Admissions after Students for Fair Admissions, Inc. v. Harvard

For the past 46 years, employers across the United States have understood that, under Title VII of the Civil Rights Act of 1964 (Title VII), they were permitted to deny an employee’s religious accommodation request based upon “undue hardship” so long as the burden of granting the accommodation would result in “more than a de minimis cost.” Employers based this understanding on the 1977 Supreme Court decision in Trans World Airlines, Inc. v. Hardison,[1] where the Court first stated that requiring an employer to “bear more than a de minimis cost” in granting a religious accommodation would constitute “an undue hardship.”[2] This standard has been consistently upheld by courts throughout the country since Hardison was first decided.

Read More >> Supreme Court Increases Burden on Employers Seeking to Deny a Religious Accommodation Based upon Undue Hardship

BREAKING: U.S. Supreme Court ruled that Harvard’s and UNC’s admissions programs, which factor an applicant’s race into account during the admissions process, are unconstitutional based on Equal Pro-tection Clause/Fourteenth Amendment grounds. A link to the decision can be found here. The decision will have resounding impacts on institutions’ admissions processes. Our higher education attorneys are studying the decision and its implications, and we will be providing commentary and guidance soon. 

Read More >> BREAKING: U.S. Supreme Court Rules on Affirmative Action in Admissions 

On June 23, 2022, the U.S. Supreme Court struck down New York’s requirement that individuals demonstrate an individualized need for protection to obtain a permit allowing them to carry a firearm for self-defense outside their home or business. In response, on July 1, 2022, Gov. Kathy Hochul signed new legislation – the Concealed Carry Improvement Act (CCIA) – which modifies the requirements for obtaining a conceal and carry permit and prohibits the possession of firearms in areas deemed “sensitive” or “restricted.” Under the CCIA, places of employment and business constitute restricted areas in which the possession of firearms is only permitted with express permission from the property owner or lessee.

Read More >> Additional Developments to New York’s Concealed Carry Improvement Act

On July 1, 2022, Gov. Kathy Hochul signed new legislation in response to a U.S. Supreme Court decision striking down a law whereby applicants for permits to “conceal and carry” firearms had to show “good cause” as to why they should be issued such a permit. The new legislation—the Concealed Carry Improvement Act (CCIA)—modifies the requirements for obtaining a concealed carry permit and prohibits the possession of firearms in areas deemed “sensitive” or “restricted.” Restricted areas were defined as private property where the owner or lessee has not given explicit permission for individuals to possess firearms on the property, by posting signage or other means. Thus, under the law, firearms would be prohibited in places of employment except where explicit permission had been given.

Read More >> Decision Issued Restraining Enforcement of Significant Aspects of New Gun Legislation

On June 24, 2022, in Dobbs v. Jackson Women’s Health Org., 2022 WL 2276808 (June 24, 2022), the U.S. Supreme Court overruled Roe v. Wade 410 U.S. 113 (1973) and Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833 (1992) and held that (i) the U.S. Constitution does not confer a right to abortion and (ii) the authority to regulate abortion is held by the states. The statute at issue in Dobbs was Mississippi’s Gestational Age Act, which banned abortion after 15 weeks except in a medical emergency or in the case of severe fetal abnormality. Employers across the nation must now determine how to evaluate and respond to the far-reaching implications of this decision.

Read More >> The Demise of Roe v. Wade: Employment and Benefits Considerations

On June 23, 2022, in New York State Rifle & Pistol Association, Inc. v. Bruen, the U.S. Supreme Court held that New York’s requirements for obtaining permits for the concealed carry of a firearm were unconstitutional in a decision authored by Justice Clarence Thomas. Since 1911, New York has prohibited individuals from possessing a firearm without a license. 

Read More >> New York Passes Gun Legislation in Response to Supreme Court Decision Overturning Licensing Restrictions for Concealed Carry Permits

The wait is over. On Jan.13, 2022, the United States Supreme Court issued a decision to stay the Occupational Health and Safety Administration’s (OSHA) vaccination or test emergency temporary standard (ETS), effectively blocking the enforcement of the ETS for the foreseeable future.

Read More >> Supreme Court Blocks Enforcement of OSHA’s Vax-or-Test Rule; What Now?

It seems that change is the only constant when it comes to OSHA’s Vax or Test Emergency Temporary Standard (ETS). Here is the current status:

The Supreme Court’s Decision is Pending

On Friday, Jan. 7, the United States Supreme Court heard oral arguments regarding the ETS at a special session of the Court.¹ Challengers to the ETS requested that the Court issue a stay to stop the ETS before Jan. 10, stating that the mandate was overly broad and was a question that should be left to Congress or to be decided at the state-specific level. Though one cannot predict how the Court will rule, based on their line of questioning, a majority of the justices appeared to be skeptical of the ETS with Justice Alito quoting the late Justice Scalia when he described OSHA’s interpretation as “squeezing an elephant into a mousehole.” At the hearing, Justice Gorsuch and Justice Kavanaugh focused on the Major Questions Doctrine.² The justices also focused on whether OSHA had the authority to mandate a vaccine that impacts not only the workplace, but also employees’ lives outside the workplace, and is, to quote Chief Justice Roberts, an “out-in-the-world issue.” Additionally, the justices floated the idea of issuing a brief administrative stay until they could make a decision. Solicitor General Prelogar, appearing for OSHA, obviously disagreed and said that the Jan. 10 deadline did not pose a major burden on businesses, except for imposing mask requirements. The Court has announced that it will be issuing “one or more opinions” on Jan. 13. It is unclear if one of these opinions will be with respect to the ETS. We are awaiting the Court’s decision and will keep you informed.

Read More >> Status Update on OSHA’s Vax or Test Mandate: Supreme Court’s Decision is Pending; First Compliance Date is Here; OSHA Clarifies Additional Questions on the Mandate

It seems that new details about the status of OSHA’s Vax or Test Emergency Temporary Standard (ETS) are emerging daily! On Dec. 22, 2021, the United States Supreme Court announced that it will expedite hearing arguments regarding the ETS at a special session of the Court on Jan. 7, 2022.¹  This announcement comes on the heels of a rapid succession of litigation and court orders. In early November 2021, the Fifth Circuit had temporarily stayed implementation of the ETS, which was later lifted by the Sixth Circuit on Dec. 17. Almost immediately, plaintiffs challenging the ETS filed several requests with the Court asking the justices to order an emergency stay of the rule. Please review Bond’s Dec. 20, 2021 blog post for additional details.

Read More >> Supreme Court to Expedite Hearing on OSHA’s Vax or Test Mandate; Prepare for OSHA’s January 10 Deadline Now

On July 8, 2020, the Supreme Court analyzed the ministerial exception for employees who allege employment discrimination claims for the first time in nearly a decade when it issued its decision in Our Lady of Guadalupe School v. Morrissey-Berru. The decision, which was issued in two combined cases on appeal before the Court, confirms the general principle under the First Amendment to the U.S. Constitution that religious institutions must retain the right to select, supervise, and, if necessary, remove an employee who qualifies as a "minister" without interference by secular authorities. The Court construed the definition of “minister” broadly in holding that the ministerial exception applied to two teachers at religious schools who had filed employment discrimination claims pursuant to the Age Discrimination in Employment Act (ADEA) and the Americans with Disabilities Act (ADA) respectively.

Read More >> Supreme Court Applies "Ministerial Exception" to Teachers at Religious Schools