Reverse Discrimination

We recently discussed a case involving reverse discrimination.  The United States Supreme Court issued a unanimous opinion on the applicable test for reverse discrimination which was authored by Justice Jackson.

The reverse discrimination claim was brought by Marlean Ames (Ames).  Ames is a heterosexual woman, who was employed by the Ohio Department of Youth Services (OYS) for two decades and was promoted several times during her employment and she received reasonably good job performance reviews.  In 2017, Ames began reporting to a new supervisor who was gay.  Ames applied for a promotion in 2018 but failed to obtain the promotion.  The promotion Ames sought went to a gay woman who had not applied for the job and lacked the minimum qualifications for the role.  After Ames was denied the promotion, she was demoted and put in a position with lower pay.  OYS then filled Ames’s previous job with a gay man.  Ames alleged these negative actions took place because she was a heterosexual woman. 

The 6^th Circuit dismissed Ames claim on the basis that she needed to establish the background circumstances to support her allegation of reverse discrimination such as showing a member of the minority group made the allegedly discriminatory decision or provided statistical evidence demonstrating a pattern of discrimination against a member of the majority group. 

The Supreme Court reversed the 6^th Circuit and held that the Sixth Circuit’s “background circumstances” rule which requires members of a majority group to satisfy a heightened evidentiary standard to prevail on a Title VII claim is not consistent with the text of Title VII or the Supreme Court’s precedents.  Title VII’s disparate-treatment provision draws no distinctions between majority-group plaintiffs and minority-group plaintiffs.  It bars employers from intentionally discriminating against their employees on the basis of race, color, religion, sex, or national origin. Congress did not provide that a member of a majority group would have to bear an additional burden but instead Congress focused on barring discrimination against any individual because of protected characteristics.  The Supreme Court noted that not only was the heightened standard was incorrect but that it had previously instructed lower courts to avoid inflexible applications of the prima facie standard.  SCOTUS reversed and remanded.  Ames v. Ohio Department of Youth Services, (SCOTUS 23-1039, 6/05/2025)

Comment:  An intentional discrimination case under Title VII will follow the McDonnell Douglas three-step burden shifting framework.  Under McDonnell Douglas a plaintiff bears the initial burden to establish a prima facie case supporting the inference of a discriminatory motive.  If the plaintiff’s evidence is sufficient then the employer has the burden to show a legitimate nondiscriminatory reason for its treatment of the plaintiff.  If the employer is able to provide a legitimate nondiscriminatory reason, then the plaintiff is provided a “fair opportunity to show that the action was merely pretextual for discrimination.”  A plaintiff may succeed by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.  

Ordering A Person To Empty Their Pockets Exceeds The Scope Of A Terry Search

Denise Lafferty (Lafferty) was a passenger in a vehicle stopped by Deputy Shinn for multiple traffic violation.  The driver of the vehicle was arrested for outstanding warrants and removed from the vehicle.  Deputy Shinn believed that Lafferty was acting unusual and Lafferty may have indicated she had a knife on her person.  Lafferty was requested by an officer on scene to exit the vehicle and empty her pockets and the officer inquired about the knife.  When Lafferty emptied her pockets, she removed a knife, and a glass vial.  Deputy Shinn observed a white powdery substance in the vial which he believed was methamphetamine but was advised by Lafferty that the item was Fentanyl. As a result of the officer discovering the fentanyl, Lafferty was arrested, the Fentanyl was seized, and Lafferty was subsequently charged for felony possession of a controlled substance. 

At the trial Lafferty filed a motion to suppress and argued the search exceeded the permissible scope permitted under the law.  At the trial Officer Shinn testified that the reason he had Lafferty empty her pockets was for officer safety.  The trial court after considering the issue concluded that the State failed to carry its burden that the motion to suppress should be denied as (1) Lafferty was not under arrest, (2) emptying pockets was not the same as a Terry pat-down search, (3) and there was no evidence Lafferty consented to the search. 

The Southern District wrote a very detailed opinion that examined the constitutional contours of a permissible Terry search.

In Terry v. Ohio, 392 U.S.1 (1968), the Supreme court provided that when a police officer has made a valid stop, a police officer may pat a suspect’s outer clothing, if they have a reasonable, particularized suspicion, that the suspect is armed.  The purpose of this search is to allow an officer to pursue his investigation without fear of violence.  The search is not to be conducted for the purpose of discovering evidence of a crime. In some cases, a Terry search may extend beyond a pat down “where the officer sincerely fears a hidden weapon might be concealed and the more extensive search is appropriate in that particular circumstance.” 

After discussing Terry, the court then focused on the subsequent legal cases that limit or define the permissible scope of a Terry search.  The Southern District noted that subsequent cases provided that the search must be reasonably limited in scope such that the purpose and the search is for the sole purpose of discovering weapons.  A search where an officer is knowingly looking for evidence of a crime and not searching for a weapon is impermissible.  A pat-down search where the nature of the contraband is not readily apparent does not expand the officer’s authority to search and seize an item in a person’s pocket.  The search must be a limited search that is strictly protective for the purpose to determine whether the suspect is armed and where any weapons are located.  The officer may then remove such weapons but may not remove any contraband that is not a weapon unless the nature of the contraband is “immediately apparent.”

The Southern District after looking at similar cases where officers had detained individuals empty their pockets determined that under the circumstances having Lafferty empty her pockets exceeded the permissible scope of the search provided for in Terry. Missouri v. Lafferty, (SD38750, 5/29/2025)

Transgender Accommodations

R.M.A v. Blue Springs School District is the leading Missouri case on transgender accommodations. The case history is lengthy, the subject matter has been extensively litigated, and there has been a significant level of nuance over the years that has been scrutinized by the courts. 

R.M.A was a student that attended Blue Springs School District in Missouri.  While in Fourth Grade R.M.A. transitioned from female to male and five years later R.M.A. changed R.M.A.’s birth certificate by changing R.M.A.’s name and sex to reflect R.M.A.’s preferred name and that R.M.A. was male.  After R.M.A. changed his birth certificate, R.M.A. requested permission to use the male designated restroom and locker room at the school.  R.M.A.’s request was denied. R.M.A. subsequently filed a claim that R.M.A. was discriminated against in his use of a public accommodation on the grounds of his sex. 

After hearing the evidence in this matter a jury found the school district liable for sex discrimination based on R.M.A.’s “male sex”, but the jury was never provided a definition of “sex”.  The School District filed a motion for a Judgment Notwithstanding the Verdict (JNOV) or, in the alternative, a motion for new trial, alleging R.M.A. failed to make a submissible case for sex discrimination or, alternatively, the jury verdict was against the weight of the evidence. The circuit court sustained the School District’s motion for JNOV and conditionally granted a new trial, finding “[t]he sole uncontradicted evidence at trial was that [R.M.A.] was excluded from the male facilities because of his female genitalia.” 

The Missouri Supreme Court on appeal affirmed the trial court’s judgment.  Since the legislature did not provide a definition of sex the Supreme Court relied on the plain ordinary meaning of the word.  The court then relied on Webster’s Dictionary which provided that “the term “sex” refers to “one of the two divisions of organic esp. human beings respectively designated male or female” as well as “the sum of the morphological, physiological, and behavioral peculiarities of living beings that subserves biparental reproduction with its concomitant genetic segregation and recombination which underlie most evolutionary change, that in its typically dichotomous occurrence is usually genetically controlled and associated with special sex chromosomes.”

The court then concluded that R.M.A. did not adduce evidence that R.M.A.’s male sex was a contributing factor in the alleged discrimination. Instead, the only evidence presented was that traits related to female sex motivated the School District’s decision.  R.M.A. v. Blue Springs School District, (SC100694, 7/10/2025)

Free Speech

Martin Misjuns (Misjuns) was employed as a Fire Captain and paramedic for the City of Lynchburg.  Misjuns maintained two Facebook pages.  One of his Facebook profiles was a personal page, and the other was a public figure page that identified him as Martin Misjuns, Ward I Chair, Lynchburg Republicans City Committee.  He did not identify himself as a city employee on his pages.  Misjuns posted four cartoons on his public figure page with the caption “BidenErasedWomen – Coming to your daughters high school locker room in the near future.”  The cartons depicted transgender women in bathroom and participating in sports.  

The posts resulted in complaints to the City about Misjuns from members of the LGBTQ community. Misjuns then received a letter from the Fire Chief to attend a meeting to discuss complaints from citizens regarding the cartoons and memes posted by Misjuns.  At the meeting Misjuns was under investigation for his use of social media and creating a hostile work environment. After a second meeting Misjuns was informed that his employment was terminated by the Fire Chief.  Misjuns sued alleging a breach of contract, alleging a First Amendment free-speech violation, an Equal Protection violation, and a First Amendment freedom of religion violation.

To hold a municipality liable for a constitutional violation under § 1983, a plaintiff must show that the execution of a policy or custom of the municipality caused the violation. “A policy or custom for which a municipality may be held liable can arise in four ways: (1) through an express policy, such as a written ordinance or regulation; (2) through the decisions of a person with final policymaking authority; (3) through an omission, such as a failure to properly train officers, that manifests deliberate indifference to the rights of citizens; or (4) through a practice that is so persistent and widespread as to constitute a custom or usage with the force of law.” 

Misjuns failed to adequately plead facts sufficient to show Monell liability in that he failed to show that his firing was a decision of a person with final policymaking authority and that there was a persistent widespread practice as to constitute a custom.

In this matter Misjuns was fired by the Fire Chief but having the authority to make personnel decisions did not make the Fire Chief the final policymaking authority. “A particular official, even a policymaking official, has discretion in the exercise of particular functions does not, without more, give rise to municipal liability based on an exercise of that discretion.” Misjuns never alleged any facts to plausibly support that the Fire Chief had final policymaking authority. The evidence showed that the acts in this matter were subject to review or supervision by other policymaking authorities in the city.

Misjuns failed to establish that there existed a widespread practice.  Misjuns alleged that emails from City officials criticizing Misjuns failed to demonstrate there existed a City policy of custom and did not identify what policy or custom the emails represented. The emails from the court’s view did not show a policy or custom of terminating employees with whose speech the City finds distasteful or dislikes.  The emails only related to Misjuns.  A single instance is insufficient and there must be a showing of “numerous particular instances” of unconstitutional conduct to establish a custom or practice.

Misjuns breach of contract claim against the City of Lynchburg also failed because the City handbook does not constitute a contract and, without a contract, there can be no breach of contract. The handbook expressly mentions at-will employment, and also expressly states that it is not a contract. 

The court affirmed the district court’s decisions.  Misjuns v. City of Lynchburg, (24-1782, 6/5/2025)

Takings Clause, Bad Neighborhood Bars

The City of Myrtle Beach (City) had a significant spike in crime in an area it identified as the “Superblock”.  Most of the crimes which included shootings, sexual assault, battery, and robbery took place around a small cluster of bars.  In response the City increased its police presence in the area and started to strictly enforce state and local safety regulation.  When that failed the city shut down two bars for repeated legal violations and a third bar shut down due to a lack of business. 

Several years after the bars closed the City was sued by three bars and the landlord of one the bars claiming violations of the Takings Clause, Due Process Clause, Equal Protection Clause, 42 U.S.C § 1985.  The plaintiffs alleged they were targeted because the bar owners and clientele were predominantly racial minorities.  During the jury trial the district court granted a summary judgment in favor of the City on all claims.

The City during its defense presented a witness, who was the only police expert who testified at the trial. The expert testified the City’s response was reasonable and within the standard of care expected.  The City presented evidence that there were repeated violations state and local laws.  One club partnered with a promoter known for attracting gang activity, operated illegal gambling, served alcohol after hours, and had security that was not properly certified.

The trial court granted summary judgment on all claims raised by the plaintiffs.  The Fourth Circuit affirmed the trial courts findings that the City had a legitimate interest in closing down bars associated with crime and were themselves violating state and local laws.  The plaintiff’s did not have a protected property interest in their business licenses because a business license that depends totally upon regulatory licensing is not a property interest” under South Carolina law. An individual does not have a property interest in “mere ‘privileges’” which “belong to private people only so long as the legislature allows them to exist.” The court also concluded there could not exist a conspiracy between the City Manager, Police Chief, and the Director of the Downtown Redevelopment Corporation because they were agents acting on behalf of the City and the City cannot conspire with itself. Public officials must often act in concert to carry out their duties, and treating such coordination as a “conspiracy” would undermine the routine functioning of government. Brady v City of Myrtle Beach, (23-1874, 5/16/2025)

Important Events And News

IMLA Events:

IMLA Annual Conference In New Orleans October 17- October 21, 2025

Civic Leaders Internship Program

The Office of Community Engaged Learning (CEL) at Mizzou places students from across campus in government, public policy, public service, and civic internships via the Civic Leaders Internship Program, known as CLIP.  This gives students exposure to government career opportunities ranging from cities and counties to state and federal. These opportunities grow student skills, professionalism and understanding of civic careers.  We have received many requests from students after these internships that now have a desire to attend law school or are minoring in pre-law to help them find undergraduate law internships.  We are asking you to help us with that pursuit.  

This experiential learning builds confidence in the students that studying law is right for them.  It exposes them to a specialty area of law to determine that fit as well. You benefit by potentially finding a future fit for your firm. The internships build critical thinking skills and a knowledge base students will rely on for the rest of their lives. Bringing on an intern also allows the firm to obtain a new perspective on the goals important to the next generation lawyers.  One of our undergraduate legal placements had this to say about their experience “I never would have expected to have gained so much from this program as it has not only built my skill set and resume but continues to provide me with opportunities connections.”

Undergraduate students might not seem like a natural fit in the legal field having not attended law school, but these students are hungry to learn and willing to work toward their legal goals. Feedback from past participants said “As far as preparing for the LSAT, I would say that my time in CLIP helped me improve my argument reasoning skills and helped me learn to read more analytically, both very important skills for the exam. Our office has placed students with the Missouri Public Defenders offices, Missouri Attorney Generals summer internship program, and the Boone County district courts as some examples.  Students have done a wide range of jobs from filing, research and document review and court preparation.  Students have gone to court and assisted the legal team and made prison visits with lawyers to meet with clients.  

This exposure to the legal field helps students understand the legal process up close but also allows them to determine the areas of law that best fit them and their skill set.  The student intern then brings that experience back to the classroom where they can apply what they learned hands on to the theory of their degree plan. This model reinforces learning and thinking at a deeper applied level.  Beyond the learning, students experience a professional legal environment in every aspect. Not to mention the network that they are building toward their own future legal career.  We believe this will create a better prepared student to apply to law school and hopefully students that positively impact your firm and our society.

If you are interested in expanding the legal opportunities for future lawyers, please contact me at cfollis@missouri.edu to help students learn, serve, network, and grow. 

Dr Chad Follis

Director, CLIP program MU