While I was attending the ABA Board of Governors meeting last week, the Supreme Court issued a decision in Ames v. Ohio Department of Youth Services that received outsized coverage given it’s relative minor impact to employers in the Constitution State.
So what did the Court hold? In a unanimous ruling, the Supreme Court struck down the so-called “background circumstances” rule that a few federal circuits had required plaintiffs from majority groups (such as heterosexual, white, or male employees) to meet a higher evidentiary standard when proving discrimination claims under Title VII.
Instead, they will have to meet the same test as any other plaintiff.
But here’s what the headlines missed: In several other Circuits, including the Second Circuit (which includes Connecticut and New York), that rule was never implemented in the first place.
Thus, for employers in Connecticut, the “change” in the rule isn’t really going to be a change at all.
The Second Circuit has consistently applied the same McDonnell Douglas burden-shifting framework to all Title VII plaintiffs who want to prove discrimination through circumstantial evidence, regardless of whether they belong to a majority or minority group. And because Connecticut state courts often look to federal law when applying the state anti-discrimination law counterparts, it’s likely that state courts will use this same test going forward.
So what does this mean for Connecticut employers?
First, employers should continue to follow the same compliance practices that they have been using. That also means treating discrimination complaints from all employees the same.
Second, the importance of a legitimate non-discriminatory reason for employment decisions remains front and center in any court’s analysis of a discrimination complaint. Employers would thus be wise to document those decisions and ensure that it is consistently applied across the board.
And lastly, the case should remind employers that so-called “reverse” discrimination claims are still viable.
Looking forward, there was a comment in Justice Thomas’s concurring opinion that is worth mentioning. In that decision, he raises interesting questions about the McDonnell Douglas framework itself, suggesting potential future changes to Title VII litigation. However, Justice Thomas’s views do not appear to be widely shared so for now, Connecticut employers should continue operating under existing precedent.