Dive Brief:
- The U.S. Supreme Court’s 2025 decision reducing evidentiary burdens for majority-group plaintiffs alleging job discrimination did not invalidate requirements that such plaintiffs show they were treated less favorably than a similarly situated comparator, the 5th U.S. Circuit Court of Appeals held Monday.
- Ames v. Ohio Dept. of Youth Services struck down lower courts’ requirements that majority-group plaintiffs show “background circumstances” to support claims that their employers discriminated against them based on their status as members of a majority group. However, the 5th Circuit said Ames did not eliminate other requirements of the high court’s four-part McDonnell Douglas framework, including its comparator prong.
- The 5th Circuit rejected the argument advanced by a Texas school teacher who alleged he was fired on the basis of his Mexican American ancestry. The court added that the comparator requirement does not constitute an “inflexible” application of the McDonnell Douglas test, as referenced by the Supreme Court in Ames.
Dive Insight:
The high court’s Ames decision served as a defining moment in the broader trend of reverse discrimination litigation hitting employers over the last few years. Though management-side attorneys had urged HR departments to beware of the risk of such lawsuits well before Ames had been decided, the case nonetheless served as a prelude to complaints filed by majority-group plaintiffs.
The decision also directly altered at least one outcome in a reverse bias case. In March, the 3rd Circuit revived a White police officer’s claims that he lost out on a promotion to an Arab Muslim colleague because of his race after determining that a lower court had applied a background circumstances rule in its analysis.
But the 5th Circuit’s decision sheds light on how Ames could affect the longstanding McDonnell Douglas burden-shifting test. The test outlines what plaintiffs who allege disparate treatment under Title VII of the Civil Rights Act of 1964 using circumstantial evidence must show in pleading their cases. Per the 5th Circuit, the fourth part of the test asks whether the plaintiff was treated less favorably than other similarly situated employees who were not members of a protected class “under nearly identical circumstances.”
The plaintiff in the 5th Circuit case, Bravo v. Dallas Independent School District, acknowledged that he had failed to meet this requirement but nonetheless alleged that Ames had overruled this bar. Specifically, the court in Ames cautioned against “inflexible applications” of the McDonnell Douglas test such as background circumstances requirements.
But requirements that plaintiffs show less favorable treatment than a similarly situated comparator are “flexible enough to survive Ames,” the 5th Circuit wrote, adding that past circuit precedent had already cautioned against excessively rigid comparator analysis in such cases.