Workforce Bulletin

Writing for a unanimous Court, Justice Ketanji Brown Jackson states that Title VII does not require a plaintiff who is a member of a “majority” group to present “additional background circumstances” as the lower court had held.

In Ames v. Ohio Department of Youth Services, petitioner Marlean Ames (“Ames”), a heterosexual woman, claimed that her employer, the Ohio Department of Youth Services, had passed her over for a promotion in favor of a less qualified gay woman. Soon after that, Ames claimed, the Department of Youth Services demoted Ames (and cut her pay) so that a gay man could fill the position rendered vacant by her demotion.

Ames brought suit under Title VII claiming that the Ohio Department of Youth Services had discriminated against her because of her sexual orientation. The District Court granted the Ohio Department of Youth Services summary judgment on the grounds that Ames failed to make a prima facie case of discrimination because “she had not presented evidence of [sufficient] background circumstances.” The lower court had found that, as a member of the “majority group,” i.e., heterosexuals, Ames needed to present evidence of “background circumstances” (referred to by the Court as the “background circumstances rule”) to establish that the defendant was the rare employer that would discriminate against the “majority” group.

On December 6, 2019, the Second Circuit Court of Appeals held that judicial approval is not required for offers of judgment to settle Fair Labor and Standards Act (“FLSA”) claims made pursuant to Federal Rule of Civil Procedure 68(a). This development may provide employers with a valuable strategic tool for use in FLSA cases, at least in the Second Circuit, allowing the parties to include terms in offers of judgment that the courts might disallow were court approval required.

Generally speaking, Rule 68 offers of judgment are a pre-trial mechanism whereby defendants can cap their ...