Legal Updates

Supreme Court Holds That "Reverse Discrimination" Plaintiffs Do Not Face Different Evidentiary Standards

The U.S. Supreme Court recently settled a split among the federal circuit courts regarding what “majority group” plaintiffs need to allege in order to state a prima facie case of employment discrimination. In a unanimous decision, Ames v. Ohio Dept. of Youth Servs., delivered by Justice Ketanji Brown Jackson, the Court held that discrimination plaintiffs are subject to the same evidentiary standards, regardless of whether they belong to a majority or a minority group.

Background Of The Case

In 2004, the Ohio Department of Youth Services hired Marlean Ames, a heterosexual woman, to serve as an executive secretary. In 2019, Ames was promoted to the title of Program Administrator. Later in 2019, she applied for a newly created management position in the agency’s Office of Quality and Improvement. Although Ames was interviewed for the position, the agency ultimately hired a different candidate, a gay woman.

A few days after Ames interviewed for the management position, her supervisors removed her from her role as Program Administrator, and Ames accepted a demotion to her original position of Executive Secretary, which also resulted in a 40% pay cut. A gay man was hired to fill the now-vacant role she had just vacated.

Ames then filed a lawsuit against the agency in federal court under Title VII of the Civil Rights Act of 1964, alleging discrimination based on sexual orientation and sex. Both the district court and the Sixth Circuit Court of Appeals ruled against Ames, relying on Sixth Circuit precedents requiring that a plaintiff like Ames, as a member of a “majority group” (i.e. heterosexual persons), was required, at the outset of her case, to present evidence of “background circumstances” suggesting that the agency was the rare employer that discriminates against members of a majority group.

Four other federal circuit courts (the Seventh, Eighth, Tenth, and DC Circuits) applied similar burdens to majority-group plaintiffs, while the remaining circuits applied no heightened pleading standard. The Supreme Court granted certiorari to address the split.

Supreme Court’s Holding

The Supreme Court unanimously held that Title VII does not distinguish between majority- and minority-group plaintiffs, rejecting the “background circumstances” test as inconsistent with Title VII’s focus on individual protections. According to the Court, a plain reading of the language of the statute shows that it establishes “the same protections for every ‘individual’—without regard to that individual’s membership in a minority or majority group.”

The Court explained that the “background circumstances” test created a heightened evidentiary standard for plaintiffs at the first step of the three-step McDonnell Douglas framework for employment discrimination cases. At the first step of this analysis, the plaintiff bears the burden of establishing a prima facie case by citing facts sufficient to support an initial inference of discriminatory motive – for instance, that the plaintiff was terminated and replaced by someone of a different race. If the plaintiff clears that not particularly onerous hurdle, the burden shifts back to the employer to articulate a legitimate and nondiscriminatory reason for its action. If the employer is able to do so, the burden shifts back to the plaintiff to show that the employer’s stated justification is merely a “pretext” for discrimination.

Courts have made clear that the McDonnell Douglas framework should not be applied rigidly but should take into account the specific facts of each case. In rejecting the “background circumstances” test, the Supreme Court held that requiring majority-group plaintiffs to produce additional evidence, such as statistical evidence or information about the relevant decisionmaker’s protected traits, resulted in an unfair, additional burden for majority-group plaintiffs that was not intended by Congress.

The Concurrence

In a concurring opinion joined by Justice Neal Gorsuch, Justice Clarence Thomas went further than the majority, rejecting not only the “background circumstances” requirement as a “judge-made rule” but also criticizing the use of the McDonnell Douglas framework altogether. In Justice Thomas’s view, this evidentiary structure has “no basis in the text of Title VII,” and the Court should reconsider “whether the McDonnell Douglas framework is an appropriate tool to evaluate Title VII claims at summary judgment.”

Implications And Guidance For Employers

The Ames decision alters the legal landscape for “reverse discrimination” plaintiffs in those circuits that had applied a “background circumstances” requirement. Majority- and minority-group plaintiffs throughout the country are now subject to the same evidentiary requirements in litigating discrimination claims.

In addition, although the case did not directly concern diversity, equity, and inclusion (DEI) programs and initiatives, the Ames decision arrived amid a national discourse about the future of DEI in the workplace. In particular, on March 19, 2025, the Equal Employment Opportunity Commission (EEOC) issued guidance addressing how employer DEI initiatives could inadvertently give rise to unlawful discrimination.

Similarly, in his concurrence, Justice Thomas addressed DEI specifically, stating that “American employers have long been ‘obsessed’ with ‘diversity, equity, and inclusion’ initiatives and affirmative action plans. Initiatives of this kind have often led to overt discrimination against those perceived to be in the majority.” As the EEOC’s guidance and Justice Thomas’s concurrence note, even the most well-meaning and celebrated employer DEI initiatives could become targets for legal challenges.

In order to stay ahead of such challenges, employers should:
 

• Ensure that management and supervisors are properly trained regarding the need to treat all employees consistently, regardless of membership (or lack thereof) in any protected class. This means using identity-neutral considerations when making positive or negative employment decisions. For example, the same business factors should be considered when an employer terminates a straight male employee as when it terminates a gay female employee.

• Thoroughly document all employment decisions, including the identity-neutral considerations supporting them.

• In conjunction with legal counsel, evaluate all current and planned DEI initiatives to ensure that they do not discriminate on the basis of protected categories.

* * *

If you have questions about the Supreme Court’s Ames decision or your organization’s DEI policies, please don’t hesitate to reach out to one of our experienced labor and employment attorneys.