Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against employees and applicants based on sex. In 2020, the Supreme Court interpreted Title VII’s ban on sex discrimination to include employer bias based on sexual orientation.
But, did you know that in about half the country, a heterosexual employee who believes that their employer discriminated against them based on their sexual orientation must also establish “background circumstances” on top of Title VII’s other requirements to establish that their employer is the “unusual” one who discriminates against the majority to sustain a claim?
What exactly are “background circumstances”?
Late last year, the Sixth Circuit Court of Appeals noted that plaintiffs “typically make that showing with evidence that a member of the relevant minority group (here, gay people) made the employment decision at issue, or with statistical evidence showing a pattern of discrimination by the employer against members of the majority group.”
The “background circumstances” test originated with so-called “reverse race discrimination” cases brought by white employees and applicants.
For example, in a case involving a white plaintiff claiming race discrimination, the DC Circuit divided “background circumstances” into two general categories: “(1) evidence indicating that the particular employer at issue has some reason or inclination to discriminate invidiously against whites, … and (2) evidence indicating that there is something “fishy” about the facts of the case at hand that raises an inference of discrimination.”
The Seventh Circuit reached a similar conclusion and described the “background circumstances” as a “major hurdle” for the plaintiff.
But not all courts concur. The Third Circuit Court of Appeals rejected the “background circumstances” concept as “irremediably vague and ill-defined.” Similarly, the Eleventh Circuit rejected a background circumstances requirement, recognizing instead that “discrimination is discrimination no matter what the race, color, religion, sex, or national origin of the victim.”
Other courts, like the First, Second, Fourth, Fifth, and Ninth Circuits, do not apply the rule.
So, it’s now up to the Supreme Court to decide whether requiring only majority-group plaintiffs to show background circumstances is contrary to Title VII’s text or otherwise too unwieldy to apply. Or is it simply a matter of a plaintiff — any plaintiff — having to provide some evidence that the employer had a discriminatory motive as part of the prima facie showing of discrimination?
We’ll find out in 2025 whether a straight white male has the same burden of proving discrimination as anyone else.