Reverse Discrimination Background Circumstances Test Causes Circuit Split

• Citation: Vol. 73 No. 2 Pg. 0019
• Publication year: 2024
• Pages: 0019
• Year: 2024

Reverse Discrimination "Background Circumstances" Test Causes Circuit Split Vol. 73 No. 2 Pg. 19 Rhode Island Bar Journal September/October 2024

This article is a special project by a participant of the 2023-2024 Leadership Academy, developed with feedback and edits from their mentor. It reflects the dedication and growth fostered within our program. We are proud to showcase the hard work and insights of our future leaders.

Damaris G. Hernandez, Esq.

Nixon Peabody

Providence

"..."reverse" discrimination cases originated from the discrimination that can sometimes accompany an employer's efforts to improve the record of his or her hiring practices."

Introduction

With affirmative action laws recently under the purview of the United States Supreme Court, all eyes shifted to the future of diversity, equity, and inclusion policies in the workplace^[1] Specific to the employment realm, practices with the intent to improve an employer's hiring practice record can result in a discrimination claim against the employer by employees in the "majority" population.^[2]Once a claim of this nature reaches the court, it is usually adjudicated using the longstanding McDonnell Douglas burden-shifting framework.^[3]

Recently, however, circuit courts have split over how the "majority" population proves discrimination under the framework.^[4] Depending on where an employee is located, he or she may have additional factual requirements to set forth a prima facie case^[5] Some courts impose an additional "background circumstances" test, while others do not. This Article explores the origination of the "background circumstances" test as well as the circuit split that may inevitably reach the United States Supreme Court.

The United States Supreme Court Sets Forth the Framework For Employment Discrimination Claims

At 7:40 on the evening of June 19, after the longest debate in its nearly 180-year history, the United States Senate passed the Civil Rights Act of 1964.^[6] The Civil Rights Act of 1964 prohibits discrimination in a broad array of private conduct, including public accommodations, governmental services, and education.^[7] One section of the Act, referred to as Title VII, prohibits employment discrimination based on race, sex, color, religion and national origin.^[8] Title VII applies to private employers, labor unions, and employment agencies^[9] The Act prohibits discrimination in recruitment, hiring, wages, assignment, promotions, benefits, discipline, discharge, layoffs, and almost every aspect of employment.^[10]

If an employee believes their employer has engaged in discrimination and other unlawful acts in violation of Title VII, there are several potential legal claims they may pursue, including disparate treatment, disparate impact, quid pro quo sexual harassment, retaliation, or negligence^[11] Disparate treatment is the most obvious form of employment discrimination.^[12] It occurs when an employer treats an employee or job applicant differently than other employees because of their race, color, religion, national origin, or sex^[13] Disparate impact occurs when a seemingly neutral practice unduly impacts employees in a protected class, often unintentionally.^[14] For example, if employees must pass physical strength tests or meet a minimum height—requirements that appear neutral at first glance—it may still have a disparate impact on women or other protected groups^[15] Assuming an employee can prove a disparate impact, the employer would be allowed to show that the policy is necessary for the position and that no alternative policy or requirement would work.^[16]

Where there is an adverse employment decision, the decision-maker, usually the employer, is unlikely to expressly state the reasons for the decision, especially where that decision was based on discrimination.^[17] In recognition of the imbalance of information in employment cases, the McDonnell Douglas burden-shifting framework seeks to compel an employer to state its reason for making the adverse employment decision.^[18]

Under the McDonnell Douglas framework, the employee bears the initial burden.^[19] This framework requires first that the employee establish a prima facie case of discrimination by proving that (1) he or she belongs to a protected class; (2) he or she was qualified for the position; (3) though qualified, he or she suffered some adverse employment action; and (4) the employer treated similarly situated people outside of his or her protected class differently, or the circumstances under which the adverse employment action occurred give rise to an inference of discrimination.^[20] Once the prima facie case is established, the burden of production shifts to the defendant-employer to articulate some legitimate, non-discriminatory reason for the adverse employment action.^[21] Provided that the employer rebuts the presumption of discrimination by articulating some legitimate, non-discriminatory reason for the adverse employment action, the third phase of the McDonnell Douglas burden-shifting framework affords the employee a fair opportunity to show that the employer's proffered reason is pretextual or discriminatory in its application.^[22]

The Bar Journal assumes no responsibility for opinions, statements, and facts in any article, editorial, column, or book review, except to the extent that, by publication, the subject matter merits attention. Neither the opinions expressed in any article, editorial, column, or book review nor their content represent the official view of the Rhode Island Bar Association or the views of its members.

The Introduction of the "Background Circumstances" Test in Reverse Discrimination Claims

Buttressed on what the Honorable Judge Abner Joseph Mikva of the...