Reverse Discrimination: An Opportunity to Modernize and Improve Employment Discrimination Law

Authors

William R. Corbett, Paul M. Hebert Law Center, Louisiana State University

Abstract

The issue of how to prove discrimination in reverse discrimination cases has produced a division in the circuits and some strongly worded opinions about discriminatory discrimination law. The courts begin with the three-stage proof framework developed by the Supreme Court in 1973 in McDonnell Douglas Corp. v. Green, 411 U.S. 792. Some courts adjust the prima facie case, the first stage of the analysis, by requiring a reverse discrimination plaintiff to prove background circumstances that justify the inference that the defendant discriminates in a way that is not consistent with historical patterns of discrimination. Other courts reject the background circumstances requirement and permit reverse discrimination plaintiffs to establish a rebuttable presumption of discrimination based on the acknowledged weak evidence of the prima facie case. Neither of these approaches is acceptable. The background circumstances approach always has been susceptible to an Equal Protection challenge. That challenge seems even more likely, and perhaps more likely to succeed, after the Supreme Court’s decision in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, 143 S. Ct. 2141 (2023). On the other hand, permitting reverse discrimination plaintiffs to establish a prima facie case based on the same evidence required in traditional discrimination cases undermines the basic assumption on which the prima facie case was based. The appropriate solution is for the Supreme Court to abrogate the McDonnell Douglas analysis and free courts in all employment discrimination cases to analyze motions under the sufficiency-of-the-evidence standard and factfinders to evaluate the ultimate issue of employment discrimination under the preponderance standard. The shifting burdens and proxy questions of the McDonnell Douglas framework served a useful purpose in developing employment discrimination law in its early decades. Now it is time for the Court to jettison the five-decade-old structure and permit employment discrimination law to evolve. The Court has that opportunity in a case in which it has granted certiorari: Ames v. Ohio Department of Youth Services, 87 F.4th 822, 824 (6th Cir. 2023), cert. granted, 2024 WL 4394128 (U.S. Oct. 4, 2024) (No. 23-1039).

Recommended Citation

William R. Corbett, Reverse Discrimination: An Opportunity to Modernize and Improve Employment Discrimination Law, 79 U. Mia. L. Rev. 160 (2024)
Available at: https://repository.law.miami.edu/umlr/vol79/iss1/5