Amicus Curiae Brief — Marlean A. Ames, Petitioner v. Ohio Department of Youth Services

Supreme Court briefDec 16, 2024

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No. 23-1039

IN THE

Supreme Court of the United States

————

MARLEAN A. AMES,

Petitioner,

OHIO DEPARTMENT OF YOUTH SERVICES,

Respondent.

————

On Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

————

BRIEF AMICUS CURIAE FOR THE

MASSACHUSETTS CHAPTER OF THE

NATIONAL ORGANIZATION FOR WOMEN

IN SUPPORT OF PETITIONER

————

ROBERT S. MANTELL

Counsel of Record

LAW OFFICE OF ROBERT S. MANTELL

47 Liberty Ave.

Somerville, MA 02144

(617) 470-1033

rmantell@theemploymentlawyers.com

Counsel for Amicus Curiae

December 16, 2024

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ................................

iii

STATEMENT OF INTEREST ............................

SUMMARY OF ARGUMENT .............................

INTRODUCTION ................................................

EVIDENCE SUPPORTING EMPLOYMENT DISCRIMINATION MUST BE

CONSIDERED IN ITS TOTALITY..........

THE FUNCTION OF THE PRIMA

FACIE CASE.............................................

III. IT IS IMPROPER TO IMPOSE A HEIGHTENED PRIMA FACIE BURDEN .............

A. The Text of Title VII Accords Protection to Women, Without Distinction .....

B. Title VII Applies the Same Standards

to Cases of Discrimination Against

Majority and Minority Groups ............

C. The Sixth Circuit’s Skepticism that a

Member of a Majority Demographic

Group Would be Subjected to Discrimination is Both Erroneous as a Matter

of Fact and Law, and Represents an

Assumption Incompatible with the

Summary Judgment Standard ...........

IV. THE SIXTH CIRCUIT IMPROPERLY

PRECLUDES EVIDENCE OF OTHER

DISCRIMINATION EXPERIENCED BY

THE PLAINTIFF ......................................

II.

(i)

TABLE OF CONTENTS—Continued

Page

AMES SATISFIED THE PRIMA FACIE

BURDEN ...................................................

CONCLUSION .................................................

iii

TABLE OF AUTHORITIES

CASES

Page(s)

Ames v. Ohio Dept. of Youth Servs.,

87 F.4th 822

(6th Cir. 2023) ...................... 3, 10-11, 13, 17, 20

Bledsoe v. TVA Bd. of Dirs.,

42 F.4th 568 (6th Cir. 2022) .....................

Bostock v. Clayton Cnty.,

590 U.S. 644 (2020) ............................... 3, 15, 19

Castaneda v. Partida,

480 U.S. 482 (1977) ................................... 14, 16

Chadwick v. WellPoint, Inc.,

561 F.3d 38 (1st Cir. 2009) .......................

Cruz v. Farmers Ins. Exch.,

42 F.4th 1205 (10th Cir. 2022) .................

Danzer v. Norden Sys.,

151F.3d 50 (2nd Cir. 1998) .......................

Desert Palace v. Costa,

539 U.S. 90 (2003) ................................... 4, 5, 17

Furnco Constr. Corp. v. Waters,

438 U.S. 567 (1978) ................................... 18, 19

Jenkins v. Nell,

26 F.4th 1243 (11th Cir. 2022) .................

LeVegliz v. TD Bank,

No. 2:19-cv-01917-JDW, 2020 U.S. Dist.

LEXIS 85659 (E.D. Pa. May 15, 2020) .....

McDonald v. Santa Fe Trail Transp. Co.,

427 U.S. 273 (1976) ................................... 9-13

McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973) ................. 4-6, 11-13, 17, 19

TABLE OF AUTHORITIES—Continued

Page(s)

Mulero-Rodgriguez v. Ponte, Inc.,

98 F.3d 670 (1st Cir. 1996) .......................

O’Connor v. Consol. Coin Caterers Corp.,

517 U.S. 308 (1996) ....................... 10, 15, 16, 20

Oncale v. Sundowner Offshore Services,

523 U.S. 75 (1998) ............................... 11, 12, 14

Ortiz v. Werner Enterprises, Inc.,

834 F.3d 760 (7th Cir. 2016) .....................

Owens v. Circassia Pharms., Inc.,

33 F.4th 814 (5th Cir. 2022) .....................

Parents Involved in Cmty Sch. v.

Seattle Sch. Dist. No. 1,

551 U.S. 701 (2007) ...................................

Parker v. Baltimore & Ohio Railroad Co.,

652 F.2d 1012 (D.C. Cir. 1981) .................

Patterson v. McLean Credit Union,

491 U.S. 164 (1989) ...................................

Reeves v. Sanderson Plumbing Prods.,

530 U.S. 133 (2000) .................... 4, 5, 7-9, 15, 16

Russell v. McKinney Hosp. Venture,

235 F.3d 219 (5th Cir. 2000) .....................

Sprint/United Mgmt. Co. v. Mendelsohn,

552 U.S. 379 (2008) ...................................

Stratton v. Bentley Univ.,

113 F.4th 25 (1st Cir. 2024)......................

Texas Dep’t of Cmty. Affairs v. Burdine,

450 U.S. 248 (1981) ...................... 4, 7-10, 19, 20

TABLE OF AUTHORITIES—Continued

Page(s)

USPS Bd. of Governors v. Aikens,

460 U.S. 711 (1983) ...................................

Vill. of Arlington Heights v.

Metro. Hous. Dev. Corp.,

429 U.S. 252 (1977) ...................................

Volling v. Kurtz Paramedic Servs.,

840 F.3d 378 (7th Cir. 2016) .....................

Young v. United Parcel Service,

575 U.S. 206 (2015) ...................................

STATUTES

42 U.S.C. § 2000e-2(a)(1).......................... 2, 11, 15

42 U.S.C. § 2000e-2(m) .................................

RULES

Fed. R. Evid. 401(a) ......................................

OTHER AUTHORITIES

Robert S. Mantell, Pretext After Bostock—

Disproving One of the Employer’s

Reasons Is Enough, 28 WASH. & LEE J.

CIV. RTS. & SOC. JUST. 65 (2022) ..............

STATEMENT OF INTEREST1

The Massachusetts National Organization for Women

(“Mass NOW”) is the largest intersectional feminist

organization in Massachusetts with national implications

through our parent organization, National Organization

for Women (“NOW”). Our membership is an intersection of feminists paving the way for equitable legislation

that benefits all persons, removing barriers to access,

including worker’s rights against discrimination.

Mass NOW advocates for equity and justice to advance

the rights of all persons to not face discrimination in

the workplace.

SUMMARY OF ARGUMENT

The sufficiency of the evidence forming a prima facie

case is evaluated in light of the “preponderance of the

evidence” standard, and the notion that evidence is

relevant if it renders a consequential fact more likely.

A minimal prima facie case is simply a combination of

easily provided information, which indicates the

presence of bias, assuming that the employer will

refuse to provide an explanation for its conduct. For

example, a prima facie case is established where the

plaintiff has a protected trait, is qualified for a

position, is rejected, and the employer searches for

other qualified individuals to fill the position. The

prima facie case may, but does not necessarily rely on

evidence expressly establishing some overt disfavor

No counsel for a party authored this brief in whole or in part,

nor has a party or counsel for a party made a monetary

contribution intended to fund the preparation or submission of

this brief. No person or entity, other than the amicus curiae, its

members or its counsel, have made a monetary contribution to

the preparation or submission of this brief.

for the protected trait, such a hostile comments,

comparator evidence or statistical proof.

Title VII makes no distinctions in protections between

majority and minority populations, and this court has

held that both types of cases are judged by the same

standards. Moreover, the impulse to assume that one

type of discrimination is more usual than other types,

and the assumption that particular types of people are

unlikely targets of bias, rely on presumptions, and

perhaps stereotypes, which are improperly wielded by

courts in general, but are particularly inappropriate

for summary judgment.

It was incorrect for the Sixth Circuit to impose a

heightened burden in cases in which the plaintiff is a

member of a “majority” demographic. The prima facie

case, as it is normally applied, accomplishes its

modest purpose, whether or not the plaintiff is in the

majority – and it did so in this case. Moreover, the

Sixth Circuit’s construction of the heightened burden,

which prohibits consideration of instances of bias

experienced by the plaintiff, constitutes an arbitrary

and unmerited restriction on the plaintiff ’s ability to

prove violations of the law and conflicts with the

emphasis in the law to focus on the individual’s

experience, as opposed to that of the relevant group.

INTRODUCTION

Mass NOW hereby submits its amicus curiae brief

in support of the Petitioner Marlean Ames. She is a

heterosexual woman who claims that her employer

demoted and failed to promote her, in favor of two

people with same-sex attraction. Ames seeks to

recover under Title VII, which prohibits employment

discrimination because of sex. 42 U.S.C. § 2000e2(a)(1). Under the law, discrimination based on sexual

orientation constitutes discrimination because of sex.

Bostock v. Clayton Cnty., 590 U.S. 644, 652-53, 658-59

(2020). Ames claims that, all things being equal, she

would not have been subjected to the two adverse

actions if she was a man.2

Ames’ claims were dismissed on summary judgment.

Ames v. Ohio Dept. of Youth Servs., 87 F.4th 822 (6th

Cir. 2023). Because Ames is heterosexual, the Sixth

Circuit designated her claim as one alleging bias

against a person in the “majority.” Id. at 825. For such

cases, the Sixth Circuit imposes a heightened burden

for establishing a prima facie case, to include a

showing of “background circumstances to support the

suspicion that the defendant is that unusual employer

who discriminates against the majority.” Id. at 825.

Pursuant to the heightened burden, evidence that the

plaintiff has experienced other discriminatory conduct

at the same employer cannot be used to demonstrate

such “background circumstances.” Id.

As will be shown below, the heightened burden is

based on presumptions and per se evidentiary rules

which find no basis in the statute, are contrary to the

decisions of this Court, and rely on inferences favoring

the employer which are inappropriate to summary

judgment analysis. We ask that this Court repudiate

the heightened burden.

Where a female employee attracted to a man would get

rejected, but a male employee attracted to the same man would

get promoted, that is a disadvantage to the woman because of her

sex. See Bostock, 590 U.S. at 656.

I. EVIDENCE SUPPORTING EMPLOYMENT

DISCRIMINATION MUST BE CONSIDERED IN ITS TOTALITY

Under Title VII, the plaintiff may prevail where the

totality of the evidence raises an inference of

discrimination based on a protected trait. A claim of

discrimination may rely on direct evidence, circumstantial evidence, or a combination of both.3

In cases in which the plaintiff relies exclusively or

“principally” on circumstantial evidence, one way to

establish discrimination is through the McDonnell

Douglas burden shifting analysis. E.g., Reeves v.

Sanderson Plumbing Prods., 530 U.S. 133, 141-42

(2000). Under that analysis, the plaintiff bears the

initial burden to produce a prima facie case. Id. at 142.

The prima facie burden is a flexible set of proofs that

may be tailored to address the facts of a particular

case. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S.

248, 253 n.6 (1981). For example, the burden is

satisfied where the plaintiff [1] is in a protected class,

[2] is qualified for a job, [3] was rejected for that job,

and [4] the employer continued to seek similarly

qualified applicants for that position. Id.

Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S.

252, 266 (1977) (to determine the existence of discriminatory

motive, courts should consider “such circumstantial and direct

evidence of intent as may be available”); USPS Bd. of Governors

v. Aikens, 460 U.S. 711, 714 n.3 (1983) (“As in any lawsuit, the

plaintiff may prove his case by direct or circumstantial evidence.

The trier of fact should consider all the evidence, giving it

whatever weight and credence it deserves”); Desert Palace v.

Costa, 539 U.S. 90, 99-100 (2003) (circumstantial and direct

evidence should be treated “alike”); see also Cruz v. Farmers Ins.

Exch., 42 F.4th 1205, 1217 n.10 (10th Cir. 2022) (“Although

we resolve this appeal based on direct evidence, Cruz is not

precluded from also relying on circumstantial evidence at trial.”).

If the plaintiff ’s evidence is sufficient, the burden

shifts to the employer to articulate one or more

legitimate, nondiscriminatory reasons for the relevant

job action. Reeves, 530 U.S. at 142. If the employer

satisfies its burden, the plaintiff is then given the

burden to demonstrate that one or more of the

employer’s reasons were not the true reasons.4

If the plaintiff ’s evidence is sufficient to prove

pretext, that evidence, in combination with the prima

facie case, can in appropriate circumstances, support a

reasonable inference that “the employer is dissembling

to cover up a discriminatory purpose.” Reeves, 530 U.S.

at 148-149. “[A] plaintiff ’s prima facie case, combined

with sufficient evidence to find that the employer’s

asserted justification is false, may permit the trier of

fact to conclude that the employer unlawfully discriminated.” Id. at 148. McDonnell Douglas is a convenient

tool for ordering and analyzing evidence to discern

whether it supports an inference of discrimination.

However, the McDonnell Douglas framework is not

the only method of proving discrimination via circumstantial evidence.5 Although many Circuit decisions

erroneously imply that McDonnell Douglas is the

Reeves, 530 U.S. at 148; Desert Palace, Inc. v. Costa, 539 U.S.

90, 99-100 (2003) (discriminatory bias may be proven with

evidence of pretext, even if some of the employer’s reasons are

legitimate and not pretextual); Robert S. Mantell, Pretext After

Bostock—Disproving One of the Employer’s Reasons Is Enough,

28 WASH. & LEE J. CIV. RTS. & SOC. JUST. 65, 87 (2022).

Volling v. Kurtz Paramedic Servs., 840 F.3d 378, 383 (7th Cir.

2016) (McDonnell Douglas is a “common, but not exclusive,

method of establishing a triable issue of intentional discrimination”); Chadwick v. WellPoint, Inc., 561 F.3d 38, 45 (1st Cir. 2009)

(declining to analyze a disparate treatment claim using the

McDonnell Douglas framework).

exclusive avenue for discrimination cases relying on

indirect proof,6 in actuality, plaintiffs may prevail

simply be establishing, without burden-shifting, that

the totality of evidence could support a finding of

liability.7 While McDonnell Douglas continues to be an

effective and useful tool for analyzing cases, it should

not preclude other combinations of evidence sufficient

to establish discrimination.

Mass NOW suggests that the Court take this opportunity to affirm that the McDonnell Douglas framework

is but one tool for establishing an inference of

discrimination, and that other combinations of proof

may be employed by the plaintiff, at their election. An

otherwise supported case should not be dismissed

merely because it does not fit neatly into the

McDonnell Douglas mold. In some jurisdictions, the

McDonnell Douglas approach is applied correctly, but

in other jurisdictions, it has ossified into a set of rigid,

hyper-technical rules, which impairs the functioning of

Title VII. As will be shown below, the imposition of

such gloss has improperly led to the dismissal of the

instant case.

E.g., Stratton v. Bentley Univ., 113 F.4th 25, 38 (1st Cir. 2024)

(“Without direct proof of discrimination, Stratton must satisfy the

familiar burden-shifting framework outlined in McDonnell

Douglas Corp. v. Green”); Owens v. Circassia Pharms., Inc., 33

F.4th 814, 825 (5th Cir. 2022) (“Because Owens does not present

direct evidence of discrimination, she must satisfy the McDonnell

Douglas burden-shifting framework”).

Ortiz v. Werner Enterprises, Inc., 834 F.3d 760, 765 (7th Cir.

2016); Jenkins v. Nell, 26 F.4th 1243, 1250 (11th Cir. 2022).

II. THE FUNCTION OF THE PRIMA FACIE

CASE

To demonstrate the error of the heightened burden,

it is necessary to first examine why the prima facie

case is probative, and the purpose it serves. We will

undertake this task, highlighting four principals. At

the outset, however, it is important to understand that

when we refer to a prima facie case below, we are

usually referring to a minimally sufficient collection of

evidence. Stronger collections of proof also satisfy the

prima facie burden, but here we are examining how

much evidence is just enough to satisfy the plaintiff ’s

initial burden. Reeves, 530 U.S. at 148-49 (strength of

the prima facie case varies, depending on the proof

supporting it).

First, weak evidence can have dispositive effect in

civil actions. Claims for discrimination arising under

Title VII use the “preponderance of the evidence” standard. Burdine, 450 U.S. at 252-553. The plaintiff prevails

if she proves an adverse action was more likely than

not based on impermissible bias. Id. at 254. Evidence

is relevant to the extent that it “has any tendency to

make a fact more or less probable than it would be

without the evidence.” Fed. R. Evid. 401(a). Thus,

evidence establishing a light inference of bias must be

considered by courts, and may indeed be dispositive.

Second, the demands of the prima facie case must

not be equated with the plaintiff ’s ultimate burden of

proof. Burdine, 450 U.S. at 254 n.7. Instead, the prima

facie case was designed to be a non-onerous burden to

give rise to a slender inference of discrimination,

assuming that the employer refuses to explain the

reason for its action. Burdine, 450 U.S. at 253. A

minimally sufficient prima facie case, in effect, creates

a presumption of discrimination to the extent that the

employer is “silent” in response. Id. at 254. In other

words, an unanswered prima facie case precludes

summary judgment in favor of the employer; but

where an employer merely articulates a reason, the

presumption favoring the plaintiff is rebutted.

Burdine, 450 U.S. at 255 & n.10.8

The probative value of the prima facie case is tested

based on the facts produced by the plaintiff, plus the

assumption that the employer can provide no legitimate explanation for its conduct. 9 It is this combination

that generates an inference favoring the plaintiff.

Where the employer responds to a prima facie case

with silence, or where the affirmative evidence could

lead a reasonable jury to believe that one or more of

the employer’s explanations were not its true reasons,10

then the employer’s conduct remains “unexplained,”

and the inference of discrimination raised by the

prima facie case can be seen as preponderating in

It is, however, possible to theorize that a prima facie case may

be so strong, and so exceed minimum requirements, that it

generates a sufficient inference of discrimination to prevail, even

if the employer has articulated a response.

Burdine, 450 U.S. at 254; see also Young v. United Parcel

Service, 575 U.S. 206, 228 (2015) (“an individual plaintiff may

establish a prima facie case by showing actions taken by the

employer from which one can infer, if such actions remain

unexplained, that it is more likely than not that such actions were

based on a discriminatory criterion illegal under Title VII.”)

(emphasis added).

We assume for purposes of this brief, that affirmative

evidence of pretext constitutes something more than a jury disbelieving the employer’s witness, based only on shifty demeanor or

other physical indication of untrustworthiness. Examples of

affirmative proof can include comparator evidence, or evidence

that the employer is blaming the plaintiff for things the employer

knows are not the plaintiff’s fault. E.g., Reeves, 530 U.S. at 144-45.

favor of the plaintiff ’s case. Burdine, 450 U.S at 254.

Thus, when we consider whether evidence is sufficient

to establish a prima facie case, we must make that

assessment assuming that the employer will not, or

cannot provide a nondiscriminatory, truthful explanation

for its conduct.

Third, the prima facie case does not necessarily

depend upon evidence that expressly indicates disfavor of

a protected trait, such as hostile remarks or comparator

evidence. In Reeves v. Sanderson Plumbing Prods., the

plaintiff established his prima facie case with replacement evidence, and he also proved pretext, by showing

that he was being blamed for issues that were not his

fault, nor within his authority. Reeves, 530 U.S. at 142,

144-45. The court held that this combination of evidence,

alone, was sufficient to establish unlawful discrimination. Id. at 146-48. The Reeves decision noted that

further evidence was available to support Reeves’ case,

including comparator evidence and hostile remarks

referencing Reeves’ age. Id. at 152-53. Noteworthy was

the fact that such evidence of express hostility to age

was not a requirement to establish the prima facie

case – indeed, it was not necessarily a requirement for

establishing liability at all. Id. at 146-48.

Instead, the prima facie case typically operates by

eliminating the employers’ most common nondiscriminatory reasons, such as lack of qualification or lack of

available position. Burdine, 450 U.S. at 254. This point

bears emphasis. The prima facie burdens do not

require any overt expression of discriminatory animus.

For example, one iteration of the prima facie case

establishes the discriminatory “character” of the job

action where the employer rejects a qualified person in

the protected class, for a position it wants filled by

someone with similar qualifications. McDonald v.

Santa Fe Trail Transp. Co., 427 U.S. 273, 279 n.6

(1976); Burdine, 450 U.S. at 253 n.6.

Fourth, where an employer accepts a replacement

after rejecting the plaintiff, an inference of bias may

arise if the replacement is unlike the plaintiff in terms

of protected class membership. So, for example, where

a qualified 68-year-old employee is replaced by someone

substantially younger, that satisfies the fourth element

of the prima facie burden. O’Connor v. Consol. Coin

Caterers Corp., 517 U.S. 308, 313 (1996). This is so,

even if the younger replacement is over age 40, and is

themselves within the protected class. Id. at 312-313.

Moreover, replacement evidence does not depend on

statistical proof. For example, even though we would

assume it would be statistically likely that a 68-yearold would be replaced by someone substantially

younger, such a replacement satisfies the weak prima

facie burden. E.g., id. at 313.

With this understanding of the prima facie case, and

the modest burden it satisfies, we will next examine

whether it was appropriate for the Sixth Circuit to

adopt a heightened burden in “majority” discrimination cases.

III. IT IS IMPROPER TO IMPOSE A HEIGHTENED PRIMA FACIE BURDEN

According to the Sixth Circuit, the usual function

and value of the prima facie case breaks down in cases

asserting discrimination against a “majority” group.

It held that for a claim alleging bias against a

heterosexual woman, that the plaintiff must prove, as

an additional part of their prima facie case, that there

are “background circumstances to support the suspicion

that the defendant is that unusual employer who

discriminates against the majority.” Ames, 87 F.4th at

825. As will be shown, the Sixth Circuit test is

erroneous, as [1] Title VII imposes no relevant

distinctions between discrimination cases brought by

members of majority and minority groups, [2] decisions

of this Court establish that the legal and evidentiary

standards for proving discrimination claims brought

by members of majority and minority groups are the

same; and [3] it is improper to presume at summary

judgment that certain individuals would be less likely

to be victims of discrimination.

A. The Text of Title VII Accords Protection

to Women, Without Distinction

It is wrong to single out certain types of sex

discrimination claims to impose a heightened burden.

Title VII bars all sex discrimination that falls within

its prohibition. The statute makes it an unlawful

“practice for an employer . . . to discriminate against

any individual . . . because of [their] . . . sex.” 42 U.S.C.

§ 2000e-2(a)(1). These words, on their face, apply

equally, regardless of whether or not a “majority”

group member is involved. Id. The text does not

indicate any blind spot for heterosexual women, or any

other type of woman.

This Court has repeatedly recognized that Title VII

includes no exception or restriction with respect to

discrimination against a majority trait, or so-called

“reverse discrimination.” McDonald v. Santa Fe Trail

Transp. Co., 427 U.S. 273, 279-280 & n. 8 (1976).

“Discriminatory preference for any group, minority or

majority, is precisely and only what Congress has

proscribed.” McDonnell Douglas, 411 U.S. at 800-801

(1973) (emphasis added); see also Oncale v. Sundowner

Offshore Services, 523 U.S. 75, 78-79 (1998) (Title VII

prohibition against sex discrimination supports a claim

of sexual harassment of a man). This is because the

text of the law controls, as opposed to our speculations

about the primary concerns of the original legislators.

Oncale, 523 U.S. at 79.

Thus, the statute, which itself is designed to prevent

discrimination, undermines the notion that it should

be more difficult for a plaintiff in the majority to recover.

B. Title VII Applies the Same Standards to

Cases of Discrimination Against Majority

and Minority Groups

From the foregoing, it follows that the legal and

evidentiary standards, including McDonnell Douglas,

apply equally to “majority” and “minority” plaintiffs.

The “same standards” apply to Title VII reverse

discrimination claims as they do to ordinary claims.

McDonald, 427 U.S. at 280.

In McDonald v. Santa Fe, the plaintiffs were two

White employees who were terminated for stealing

their employer’s anti-freeze, while an equally guilty

Black employee was retained. McDonald, 427 U.S. at

275-76. Addressing whether Title VII prohibits reverse

discrimination, the Supreme Court explicitly referred

to the prima facie case identified in McDonnell

Douglas as being consistent with the notion that Title

VII prohibits discrimination against White persons.

McDonald, 427 U.S. at 279 n.6. In doing so, the Court

tacitly accepted that the McDonnell Douglas prima

facie case applies to reverse discrimination claims. Id.

Additionally, the Court held that the analysis to be

applied in McDonald v. Santa Fe is “indistinguishable

from McDonnell Douglas,” and held that the White

plaintiffs should be accorded the chance to establish

pretext in conformity with the McDonnell Douglas

framework. Id. at 282. Also, the Court wrote:

We cannot accept respondents’ argument that

the principles of McDonnell Douglas are inapplicable where the discharge was based, as

petitioners’ complaint admitted, on participation in serious misconduct or crime. . .. The

Act prohibits all racial discrimination in

employment, without exception for any group

of particular employees.

McDonald, 427 U.S. at 283-284. Thus, McDonnell

Douglas principles, including its construction of the

prima facie case, applies to cases involving discrimination against those in the majority. Id. at 279 n.6.

C. The Sixth Circuit’s Skepticism that a

Member of a Majority Demographic

Group Would be Subjected to Discrimination is Both Erroneous as a Matter

of Fact and Law, and Represents an

Assumption Incompatible with the

Summary Judgment Standard

Under the Sixth Circuit’s reasoning, Ames would

have easily satisfied her prima facie burden if she was

a lesbian employee who was rejected in favor of a

heterosexual replacement. Ames, 87 F.4th at 825.

However, according to the Sixth Circuit, Ames’ status

as a heterosexual plaintiff requires the imposition of

the heightened burden. This extra burden appears to

rest upon skepticism that a member of a majority

group would be subjected to discrimination. See Parker

v. Baltimore & Ohio Railroad Co., 652 F.2d 1012, 1017

(D.C. Cir. 1981) (holding that it would defy common

sense to infer discrimination when a Black person is

selected over a White person).

This Court has repeatedly rejected any a priori

presumption that any particular group would be more

or less subject to discrimination. “Because of the many

facets of human motivation, it would be unwise to

presume as a matter of law that human beings of one

definable group will not discriminate against other

members of that group.” Castaneda v. Partida, 480 U.S.

482, 499 (1977).

Likewise, this Court has rejected any categorical

presumption that members of a group will not discriminate against members of that same group. Oncale, 523

U.S. at 78 (“we have rejected any conclusive presumption that an employer will not discriminate against

members of his own race.”). “The proposition that

people in a protected category cannot discriminate

against their fellow class members is patently untenable.”

Danzer v. Norden Sys., 151F.3d 50, 55 (2nd Cir. 1998).

Indeed, the creation of different tests based on

assumptions about the discriminatory attitudes that

particular people would more likely harbor appears to

rely on the very types of stereotypes that Title VII was

designed to render powerless. LeVegliz v. TD Bank, No.

2:19-cv-01917-JDW, 2020 U.S. Dist. LEXIS 85659 (E.D.

Pa. May 15, 2020), at 9 (“Arguments suggesting that

people act in a certain way based on their membership

in a protected class have no place in the judicial

system”). Unequal tests based expressly on protected

traits should be repudiated. As this Court has said, the

“way to stop discrimination . . . is to stop

discriminating . . ..” Parents Involved in Cmty Sch. V.

Seattle Sch. Dist. No. 1, 551 U.S. 701, 748 (2007).

Unfortunately, discrimination appears to be a

human condition, with many types of people capable of

discriminating against many other types of people,

including their own. The agendas behind discriminatory bias are as varied and unique as the people

making the decisions. We should not be assuming at

summary judgment that certain types of discrimination are less credible, where the facts that ordinarily

establish discrimination are present.

The majority/minority bifurcation used by the Sixth

Circuit is unworkable. Demographics may change, but

attitudes may not. And attitudes may change where

demographics remain stable. A traditional or stereotypical

view of what discrimination looks like cannot overshadow the broad scope and language of Title VII.

Women represent the majority of the adult

population in the United States, and yet women are

the ones traditionally disfavored for hire in certain

professions. It would be absurd to impose a heightened

prima facie burden on female plaintiffs, simply because

their population represents a numerical majority.

Likewise, it may be said that in some contexts in our

society, older men can experience a relatively advantaged

status. However, when considering an age discrimination case brought by an older man, this Court accepted

a standard prima facie case involving replacement

evidence, without any heightened requirement. Reeves,

530 U.S. at 142; O’Connor, 517 U.S. at 313. Thus,

discrimination against certain people greatly depends

on the particular contexts and personalities of those

involved. The requirements for proof for an individual

case should not rise and fall based on judicial

ruminations about societal trends.

Title VII focuses on the treatment of an individual.

42 U.S.C. § 2000e-2(a)(1). Consequently, when fashioning

evidentiary tests, the focus should be “on individuals,

not groups.” See Bostock, 590 U.S. at 658. Given that

the individual is central to a Title VII claim, that

means that the specific circumstances and participants in a particular case are likewise unique. The

presumption that an adequate prima facie case for

discrimination against a gay or lesbian individual is

inadequate for a claim brought by a heterosexual

individual ignores the individual circumstances of the

case, and make unwarranted assumptions that “majority”

plaintiffs are somehow immunized from bias. Castaneda,

480 U.S. at 499.

Likewise, the Sixth Circuit’s focus on whether

particular types of discrimination are “unusual” is

seriously flawed. It makes presumptions based on

ungrounded observations about society, or region, in

general, as opposed to an examination of the facts of a

particular case. The Sixth Circuit does not describe its

method for determining whether a type of discrimination is “unusual,” and it does not identify the necessary

frequency needed for it to consider a discriminatory

practice to be “usual.”

Finally, there is nothing in this Court’s decisions

that tie the sufficiency of a prima facie case to whether

a particular type of discrimination is more expected.

Recall that the prima facie case does not depend on the

statistical likelihood that the employer would prefer

someone who does not share the plaintiff ’s particular

protected characteristics. O’Connor, 517 U.S. at 313

(prima facie burden satisfied when a 68-year-old is

replaced by substantially younger person).

To dismiss a case based on the assumption that a

certain type of discrimination is unusual reflects an

inappropriate reliance on inferences favoring the

employer, which must not be considered at summary

judgment. Reeves, 530 U.S. at 150-51 (applying JNOV

standard, but also noting that the same standard

applies to summary judgment). Thus, a heightened

burden for women with majority traits should be rejected.

IV. THE SIXTH CIRCUIT IMPROPERLY

PRECLUDES EVIDENCE OF OTHER

DISCRIMINATION EXPERIENCED BY

THE PLAINTIFF

According to the Sixth Circuit, the “background

circumstances” necessary to satisfy Ames’ prima facie

case, must not include evidence of other discrimination

experienced by Ames while working at the defendantemployer. Ames, 87 F.4th at 825 (“a plaintiff cannot

point to her own experience”). This rule, which bars

judges from considering proof of discrimination in a

Title VII case, is Kafkaesque.

This Court has repeatedly rejected arbitrary rules

that establish the requirement for certain types of

evidence while diminishing the value of different,

otherwise probative evidence. Desert Palace, 539 U.S.

at 100-101 & n.3 (rejecting rule that requires direct

evidence in order to prove discrimination pursuant to

42 U.S.C. § 2000e-2(m); Patterson v. McLean Credit

Union, 491 U.S. 164, 187-188 (1989), superseded by

statute on other grounds (evidence of pretext may take

a variety of forms, and it was error to require pretext

evidence that focuses on qualifications, to the

exclusion of other proof of bias).

Here, the Sixth Circuit has excluded from consideration evidence of Ames’ workplace experience, which

under ordinary circumstances, would be considered

evidence of discrimination. For example, to support

her failure-to-promote claim, she shows that she was

also demoted in favor of a less qualified person with

same-sex attraction. We know that an employer’s

ongoing treatment of the plaintiff may be probative of

the employer’s motive with respect to a specific

adverse action. McDonnell Douglas, 411 U.S. at 804

(“Other evidence that may be relevant to any showing

of pretext includes facts as to the [employer’s]

treatment of [the plaintiff] during his prior term of

employment . . ..”).

Likewise, Ames has introduced evidence that the

individual who replaced Ames after her promotion,

claimed that he could manipulate people to get what

he wanted on the basis of being a gay man, and

indicated that he wanted Ames’ job. Many courts have

held that the statements of those in a position to

influence an employment decision can be probative of

discrimination.11 Here, where the replacement himself

claimed that he was in the position to influence such

decision, and himself was the beneficiary of that very

decision, that statement can likewise support a claim

of discrimination. E.g., Mulero-Rodgriguez v. Ponte,

Inc., 98 F.3d 670, 676 (1st Cir. 1996) (racist statement

of person who eventually took over the plaintiff ’s

responsibilities was considered probative, as he was in

a position to influence the employer’s decision).

This Court has instructed us that the prima facie

case was “never intended to be rigid, mechanized, or

ritualistic.” Furnco Constr. Corp. v. Waters, 438 U.S.

567, 577 (1978). Likewise, this court has rejected the

notion of applying per se rules to exclude evidence of

Mulero-Rodgriguez v. Ponte, Inc., 98 F.3d 670, 676 (1st Cir.

1996) (where an accountant was more trusted than plaintiff

(General Manager and Director) and was given some of the

plaintiff’s responsibilities, the accountant’s racist comment was

admissible, because he was “in a position to influence Ponte, Inc.’s

decision-making”); Russell v. McKinney Hosp. Venture, 235 F.3d

219, 229 (5th Cir. 2000) (biased remarks could be considered,

“even if uttered by one other than the formal decisionmaker,

provided that the individual is a position to influence the

decision”); Bledsoe v. TVA Bd. of Dirs., 42 F.4th 568, 582 (6th Cir.

2022) (applying “position to influence” standard).

discrimination, in the absence of a case-specific

evaluation of the probative value of such evidence.

Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379,

382-383, 387 (2008) (holding in an age discrimination

case that it would be improper per se rule to exclude

all evidence of comparators who do not share the same

supervisor as the plaintiff). However, in this case, the

heightened burden seeks to both impose a rigid,

mechanistic approach to McDonnell Douglas, and a

categorical ban on the use of certain types of otherwise

admissible evidence. The Sixth Circuit’s practice of

ignoring competent evidence of discrimination is simply

wrong. Given Title VII’s focus on protecting individuals, as

opposed to groups, a rule that excludes evidence of

discrimination experienced by an individual plaintiff

cannot be correct. Bostock, 590 U.S. at 659 (noting Title

VII’s “focus on individuals rather than groups”).

This brief concludes where it began – making the

point that McDonnell Douglas is co-extensive with,

and runs parallel to a “totality of the evidence” analysis.

McDonnell Douglas is a valuable, time-tested framework

that focuses the courts on circumstances that can

support a discrimination claim. However, it must not

be wielded in a way that precludes plaintiffs from

gaining the benefit of all the evidence that would

otherwise would be at their disposal. Plaintiffs must

be permitted to rely on instances of discrimination to

which they were subjected, and expression of bias that

they have witnessed, to support their claims. To hold

otherwise would be to put form over substance, in direct

violation of Furnco, Burdine, and many other decisions.

V. AMES SATISFIED THE PRIMA FACIE

BURDEN

Ames has satisfied a minimal prima facie burden, in

that she has provided sufficient evidence to generate a

weak, yet sufficient, inference of discrimination, if we

assume that the employer refuses to explain its action

in response. Burdine, 450 U.S at 254. Indeed, the Sixth

Circuit acknowledged that Ames would have easily

met her burden, had she been alleging discrimination

as the constituent of a minority group. Ames, 87 F.4th

at 825. The proof offered by Ames has effectively

eliminated the common defenses of lack of qualification and lack of available position. Burdine, 450 U.S at

254. She has shown that the employer preferred two

unqualified individuals outside her protected class, for

positions the employer wished to be filled. See O’Connor,

517 U.S. at 313. Ames’ collection of proof is sufficient

to create an inference of discrimination assuming that

the employer cannot or will not articulate a legitimate,

nondiscriminatory reason in response.

CONCLUSION

For the foregoing reasons, Amicus Curiae Mass

NOW requests that this Court reject the imposition

of the heightened prima facie burden imposed by

the Sixth Circuit for claims brought by members of

majority groups.

Respectfully submitted,

ROBERT S. MANTELL

Counsel of Record

LAW OFFICE OF ROBERT S. MANTELL

47 Liberty Ave.

Somerville, MA 02144

(617) 470-1033

rmantell@theemploymentlawyers.com

Counsel for Amicus Curiae

December 16, 2024

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.