On December 16, 2024, NELA filed an amicus brief with the U.S. Supreme Court in Ames v. Ohio Department of Youth Services. The question presented is whether, to survive summary judgment, employees of so-called “majority” groups must show “background circumstances” that the employer discriminates against the majority as an additional element of their prima facie case under McDonnell Douglas Corp. v. Green. Under the authorship of renowned Supreme Court practitioner Eric Schnapper, NELA took the opportunity to remind the Court that all workers, and not just majority workers, can be harmed by lower courts’ overly rigid application of the McDonnell Douglas at the summary judgment stage. NELA urged the Court to hold that while McDonnell Douglas can be a useful tool in some cases and that plaintiffs have the right to proceed under that framework if they so choose, employees do not need to establish a prima facie case at all to survive summary judgment. Rather, the question at summary judgment should be, as it is in all cases, whether there is a genuine issue of material fact that could allow a reasonable jury to find in the plaintiff’s favor. In crafting this brief, NELA weighed many competing interests, including preserving equal employment opportunity and recognizing the ways in which some workers benefit from McDonnell Douglas, while others unfairly lose at summary judgment because of lower courts’ over-mechanization of the prima facie case.
After much thoughtful consideration, NELA reached the position set forth in the amicus brief, which does not focus on Ames’ status as a “majority” worker (here, a heterosexual woman), but rather supports reversing the grant of summary judgment against her because she is a worker who was denied the right to a jury trial based on an judicially-created test that undermines a statutory civil right. Significantly, the Ames case does not involve an attack on DEIA or affirmative action programs. The employer, the state of Ohio, did not claim that the adverse actions at issue were in any way influenced by any policy or practice aimed at providing equal employment opportunity to “minority” employees. NELA remains committed to a diverse, equitable, inclusive, and accessible workplace, and will continue to oppose any effort to undermine employers’ good faith efforts at achieving equal opportunity.
NELA is deeply grateful to Professor Schnapper, Amicus Advisory Council (AAC) Co-Chair and Board Member Christine T. Elzer, and Program Director Ashley O. Westby, who spearheaded this heavy lift. We also recognize the contributions of AAC Co-Chair Michael L. Foreman; the NELA Board; Institute Director Jason Solomon; and Interim Executive Director Karen Maoki for their invaluable contributions.
