The Sixth Circuit Court of Appeals recently ruled on a sex discrimination case where the Plaintiff argued she was denied a promotion twice and then the employer moved to demote her because she was heterosexual. The case involved the “unusual employer who discriminates against the majority.” This type of discrimination is sometimes erroneously referred to as reverse discrimination.

To prove she was discriminated against, Plaintiff tried to show by indirect evidence that she was denied promotion and also demoted. To legally show this, the Court said she had to: 1. show she was a member of a protected class; 2) show she was subjected to an adverse employment decision; 3. show she was qualified for the relevant position; and 4. show that her employer more favorably treated a similarly qualified person who was not a member of the same protected class.

Because Plaintiff was heterosexual, a member of the majority class as opposed to a minority, the court said she had to make a showing of one additional criteria. Plaintiff must also show “background circumstances” to support the suspicion that the defendant is that unusual employer who discriminates against the majority.

Plaintiff argued a gay man was given her position as PREA Administrator as she was demoted from it. She also argued the other position she was denied promotion into was given to a gay woman. Despite this, the Court found that she failed to meet the showing of “background circumstances.” By this, the Court meant she would have to show that the minority group (gay people) made the adverse employment decision alleged to be discriminatory. This was not the case here. The persons that made the decisions not to promote and to ultimately demote the Plaintiff were both heterosexual. Additionally, Plaintiff could not show a pattern and practice of other heterosexual employees being discriminated against by the employer.

Because Plaintiff could not show she met this extra test of ‘background circumstances” her sexual-orientation discrimination claim failed.

Her last claim argued she was demoted from her first position as the PREA Administrator because of her sex. Though, she made a prima-facie case on this claim because she was replaced by a man. The employer argued she had been given sub-standard performance reviews in areas necessary to improve the department’s performance she was in, not just to meet minimum standards as she had demonstrated. Plaintiff argued this reason was just pretextual and the real reason was discriminatory. The employer showed in its defense that Plaintiff’s evaluation was insufficient and two of her key performance competencies were not high enough to warrant the promotion. Though the Court noted the employer’s rationales seemed inconsistent at points “absent some conflict between an employer’s nondiscriminatory reasons for an adverse employment decision, however, that employer offers more than one of them - even at different times - is not enough to create a genuine issue of fact as to pretext.”

The Sixth Circuit Court of Appeals upheld the lower court’s judgment for the employer.

Despite being an odd discrimination case, this case also demonstrates that employers need to identify and document their legitimate business reasons for an employment decision that adversely impacts another employee.

Source: US Sixth Circuit Court of Appeals Marlean A Ames v. Ohio Department of Youth Services (No. 23-3341) (12/4/2023)