Heightened Standard of Proof for Reverse Sex Discrimination Plaintiffs

The 7th Circuit applies a modified McDonnell Douglass test to reverse discrimination claims.  Under McDonnell Douglass, a plaintiff must show that: (1) he is a member of a protected class; (2) he was meeting his employer's legitimate expectations; (3) he suffered an adverse job action; and (4) similarly situated individuals were treated more favorably than he was.  However, when the plaintiff is a member of a "majority" (such as a male plaintiff alleging gender discrimination), he is required to establish "background circumstances" that demonstrate that the employer discriminates against the majority, or that there is something "fishy" going on.  Farr v. St. Francis Hospital, 570 F.3d 829, 833 (7th Cir. 2009).

If the plaintiff establishes these elements, then the burden shifts to the employer to produce a legitimate, non-discriminatory reason for the adverse employment action.  This is a burden of production for the employer, not a burden of persuasion.  The burden to prove intentional discrimination remains with the plaintiff at all times.  If the employer produces a legitimate, non-discriminatory reason, then the plaintiff must prove that the employer's stated reason is pretext for discrimination, i.e., a dishonest explanation for the adverse employment action.