More thoughts on "Reverse Discrimination"

We reported previously that the U.S. Supreme Court docket includes a "reverse discrimination" case brought by a heterosexual woman who claimed that gay co-workers were treated better than she.? The plaintiff alleged a denial of promotions, and a demotion, because of her sexual orientation. The issue in Ames v Ohio Department of Youth Services is whether a person outside a "protected class" (LGBTQ+) had to meet a heavier burden of proof in discrimination than employees in that protected class. The Court will hear argument in late February.?

?Two points to add since our first article:

?1)? Federal Agencies Weigh In.? ?Our earlier prediction that Ames will win her case also takes into account the declarations last month from the EEOC and the DOL, in amicus briefs filed in the Ames case, that all claims of discrimination should be treated the same.? These federal agencies advocate that the core issue in a disparate treatment case is the treatment of the individual plaintiff, not the employer’s treatment of the class to which the plaintiff belongs.

The agencies tread a fine line here, but the focus on the treatment of the individual claimant makes sense, given the slow but measurable progress of the enforcement of Title VII. The established rule among federal courts is that a person in a reverse case indeed must come up with something more, i.e., “background circumstances” indicating discriminatory practices or policies.? The courts have generally looked for a pattern showing the actions of the “unusual employer who discriminates against the majority.” ?The background for this rule is the key legislative finding supporting the passage of Title VII: women and minorities have historically been victims of discrimination in favor of Males and Whites. ?Obviously, these federal courts’ rulings have implied, Title VII was not passed with the objective of eliminating job bias against Whites and Males. ?The agencies seem to allow that the historical discrimination is very different from the discrimination of today.?

?In this sense the likely Ames ruling will eliminate the “protected class” concept.

?

?2) But Note Ames will not Change Everything. ?A ruling eliminating the "reverse discrimination" standard of proof will have no impact, at least not directly, on state discrimination laws that have been interpreted to require a greater showing.?

Furthermore a decision in Ames will have little effect on discrimination claims based on age, religion, pregnancy status, or accommodation cases under the ADA or the Vocational Rehabilitation Act, and also to USERRA cases, based on the rights of members of the uniformed services.? These statutes generally have not involved “reverse” claims in the first place, and will continue to be interpreted that way.

1) The Age Discrimination in Employment Act, given its wording, has consistently been interpreted to protect only those over the age of 39. ??A few states do not use this cut-off, e.g. Maine. It has no cut-off.? A thirty-year old claimant under this State’s laws can allege disparate treatment based on the treatment of older co-workers.

2) A disability discrimination claim for the failure to accommodate invokes the rights of a disabled applicant or employee to be treated fairly if the claimant can perform the essential functions of the job with or without an accommodation. By definition an abled person cannot bring a “reverse” claim contending an illegal refusal to accommodate this individual in comparison to similarly situated disabled workers.?

3) The status of being pregnant under its new protective legislation should be recognized as outside the “reverse” zone. ???

4) Similarly the right to a reasonable accommodation for religious practices (the right to decline work assignments on the Sabbath, the right to take time during the day to pray, the option to refuse to be vaccinated on religious grounds) - including those with “non-theistic” beliefs – does not imply a right to a reasonable accommodation on the basis of practices which are not religious.? A “reverse religion claim.” comparing accommodation for religious reasons to the accommodation for a modification of work scheduling for a plaintiff’s family obligations, will not get very far in the legal system. ???

5)? A “reverse” claim brought by an individual not serving in the armed forces, comparing the denial of his or her right to time off with that afforded individuals on active duty leave, would face substantial hurdles.???