Courts Split on How Workers in ‘Majority’ Prove Discrimination

A federal appeals court divide over how White workers, men, and other employees in the “majority” prove discrimination has the potential to affect litigation challenging corporate diversity policies and one day reach the US Supreme Court.

The issue emerged last week in the Cincinnati-based US Court of Appeals for the Sixth Circuit, where a heterosexual woman lost her bid to revive claims that her employer unlawfully demoted and passed her over for promotion in favor of LGBTQ+ workers. A three-judge panel determined that she failed to prove “background circumstances” showing she worked for “that unusual employer who discriminates against the majority.”

Judge Raymond Kethledge, a George W. Bush appointee, criticized that test in a concurrence, calling it a “deep scratch” across Title VII of the 1964 Civil Rights Act and noting a circuit split that could merit high court review.

Labor and employment attorneys say the “background circumstances” requirement could take on more significance as lawsuits targeting diversity, equity, and inclusion programs percolate in the courts. Those types of workplace bias cases largely cropped up after the Supreme Court’s conservative majority ended affirmative action in college admissions.

“This would be a little more nuanced aspect of Title VII—do they have the appetite to continue to take it on? I don’t know,” David Fortney, an employer-side attorney and co-founder of Fortney Scott LLC, said of the justices and discrimination cases. “But would the folks that are challenging DEI” have the will “to drive as much as possible up to the Supreme Court? You betcha.”

Background Circumstances

The D.C. Circuit first adopted the “background circumstances” test in 1981 in a Title VII case brought by a White, male worker. The court determined that the extra analysis was necessary when addressing whether a member of the majority could establish a “prima facie” case of discrimination—a multi-pronged test that’s required when plaintiffs have only indirect evidence of bias.

Under it, workers must first show they are a member of a class that’s protected under Title VII, which prohibits bias based on race, sex, and other categories.

“Whites are also a protected group under Title VII, but it defies common sense to suggest that the promotion of a black employee justifies an inference of prejudice against white co-workers in our present society,” the D.C. Circuit said.

The “background circumstances” analysis has since been used by the Sixth, Seventh, Eighth, and Tenth circuits in cases alleging race or gender discrimination against White men. Together, those circuits encompass 20 federal courts, mostly in the Midwest.

Two circuits have rejected it: the Philadelphia-based Third Circuit and the Eleventh Circuit in Atlanta. The Third Circuit called it a “problematic and unnecessary” test that increases the burden for plaintiffs, while the Eleventh Circuit said “racial discrimination against whites is just as repugnant to constitutionally protected values of equality as racial discrimination against blacks” and therefore should be analyzed exactly as any other race bias claim would be.

Sunu Chandy, a senior adviser for legal services nonprofit Democracy Forward, defended the “background circumstances” test, saying it is “one of the few places in the law where circuit courts are still recognizing that these laws were created in response to really intense discrimination” and power dynamics in society.

High Court, DEI Issue

The Sixth Circuit’s ruling last week—which applied the test in the context of a sexual orientation discrimination claim—adds a “new nuance,” said Michael Foreman, a Penn State Law professor and director of its Civil Rights Appellate Clinic.

He said confusion among circuit courts on how to handle an issue is one factor that can lead to Supreme Court review.

“Given the way way this Supreme Court has ruled on what is race discrimination, I think it’s ultimately the type of issue that the court would say, ‘That’s a bit of discrimination in and of itself to make the white male prove something more that nobody else has to prove,’” he said.

However, Carolyn Wheeler, a worker-side attorney at Katz Banks Kumin LLP, said she doesn’t expect the issue will escalate to the high court.

“I don’t think the way the Sixth Circuit did it, in this particular case, is that unusual,” she said, adding that the test has “been around for decades without the Supreme Court looking at it.”

Legal observers said the “background circumstances” analysis could play a role if individual workers bring Title VII lawsuits alleging discrimination tied to DEI programs—at least in the circuits that apply the test.

But it likely wouldn’t be implicated in recent litigation filed by conservative groups challenging diversity policies under a separate law—Section 1981 of the 1866 Civil Rights Act—they said.

While an employee would have to meet the requirement depending on where the lawsuit is filed, it would be a stretch for the existence of a DEI program alone to establish “background circumstances” that an employer discriminates against the majority, Chandy said.

“In this day and age, most respectable companies do have some kind of DEI work and programs,” she said.