U.S. Supreme Court Reconciles Circuit Split Regarding Standard for “Reverse Discrimination” Claims

On June 5, 2025, the U.S. Supreme Court issued a unanimous decision in Ames v. Ohio Department of Youth Services, rejecting the “background circumstances” requirement multiple circuit courts of appeals have applied to Title VII disparate treatment claims brought by plaintiffs from “majority” groups. Instead, the Court held that all Title VII plaintiffs—regardless of race, gender, or other protected class status—are subject to the same pleading standard, and majority group plaintiffs are not required to show additional “background circumstances” suggesting discrimination.

The Court’s holding resolves the circuit split in favor of the majority view. Based on the questioning by the Justices at oral argument in February, this outcome was not surprising. What remains to be seen, however, is whether the Court’s holding ushers in a new wave of reverse-discrimination claims, particularly as it comes in the context of the current political climate, including the recent anti-DEI executive orders.

The Dispute

The Plaintiff, Marlean Ames, a straight woman, worked as an administrator for the Ohio Department of Youth Services for 15 years. In 2019, she applied for a promotion to Bureau Chief of Quality but was passed over in favor of a colleague who was a gay woman. Subsequently, Ames was demoted and later replaced by a 25-year-old gay man. She alleged that these employment decisions were based on her sexual orientation, constituting discrimination in violation of Title VII, and filed suit in the U.S. District Court for the Southern District of Ohio.

The district court granted summary judgment in favor of the defendant, holding that Ames failed to establish a prima facie case of discrimination. The court cited the “background circumstances” rule, which requires the plaintiff belonging to majority group—such as a heterosexual individual in a case involving sexual orientation—to meet a heightened burden of proof. The majority-group plaintiff must show “background circumstances” to support an inference that the defendant is the “unusual” employer who discriminates against the majority.

The Sixth Circuit Court of Appeals affirmed the district court’s judgment in a per curiam opinion, holding that Ames met the usual elements of a prima facie case of sex discrimination but failed to make an additional showing of background circumstances. Notably, Judge Kethledge, writing separately, suggested the rule may need to be revisited. While he concurred with the court’s opinion, his reasoning reflected doubts about the “background circumstances” requirement.

In October 2024, the U.S. Supreme Court agreed to hear the case.

At the time, five circuit courts applied the “background circumstances” rule, while seven did not, creating a circuit split. The Third and Eleventh Circuits had explicitly rejected the test, while the remaining circuits remain divided on its application in reverse-discrimination cases.

Supreme Court Oral Arguments

Based on the Court’s questioning during oral arguments on February 26, the Justices appeared to be inclined to rule in favor of Ames and standardize the evidentiary burden for discrimination claims under Title VII.

The counsel for Ames, Xiao Wang, narrowed the question presented to the Supreme Court to whether plaintiffs who are members of a majority group, such as heterosexual individuals in cases involving sexual orientation, must meet a heightened burden of proof to establish workplace discrimination under Title VII of the Civil Rights Act. Justice Neil Gorsuch remarked that all advocates appeared to be in “radical agreement” that the “background circumstances” rule was an improper bar to establishing a prima facie case.

Ohio Solicitor General T. Elliot Gaiser conceded that he would not defend the “background circumstances” requirement but argued that the Sixth Circuit’s ruling should be affirmed because Ames had failed to establish that any adverse action against her was motivated by her sexual orientation. The Justices’ questioning suggested that this issue was more appropriately addressed on remand and focused on the heightened showing required for majority plaintiffs.

Notably, Judge Kethledge’s concurrence appeared to be a roadmap for many of the Justices’ questions. Judge Kethledge had written that the “background circumstances” requirement goes against the language of Title VII, imposing “burdens on different plaintiffs based on their membership in different demographic groups.” When questioned on whether the respondent agreed with that concurrence, Gaiser replied “Ohio agrees that it’s wrong to treat people differently.”

The U.S. Supreme Court’s Holding

Yesterday, on June 5, 2025, the U.S. Supreme Court unanimously held that Title VII does not impose a heightened pleading standard on majority-group plaintiffs and remanded the case back to the lower courts.

The majority opinion, authored by Justice Ketanji Brown Jackson, relied on precedent including Griggs v. Duke Power Co.[1], McDonald v. Santa Fe Trail Transportation Co.,[2] and Bostock v. Clayton County[3] in finding that “the standard for proving disparate treatment under Title VII does not vary based on whether or not the plaintiff is a member of the majority group.” Title VII, Justice Jackson wrote, “makes it unlawful to discriminate against any individual, regardless of their status. Congress left no room for courts to impose special requirements on majority-group plaintiffs.”

Justice Clarence Thomas wrote a concurrence, joined by Justice Gorsuch, criticizing companies engaging in DEI practices that “have overtly discriminated against those they deem members of so-called majority groups.” Justice Thomas cited an amicus brief filed by America First Legal, which has brought several lawsuits against companies alleging race- and sex-based discrimination through their DEI initiatives.

The Court’s ultimate decision striking the “background circumstances” requirement was unsurprising, given the questions at oral argument. But the more significant aspect of the decision may be the concurrence’s overt challenge to the McDonnell Douglas burden-shifting framework in effect for decades. Originally established in McDonnell Douglas Corp. v. Green,[4] the three-step process is widely used in employment discrimination cases to assess whether an employer’s stated reason for an adverse action is a pretext for discrimination. Justice Thomas concluded his concurrence by questioning the use of the framework in evaluating Title VII claims at summary judgment, calling the framework “unworkable” and asserting that lower courts are free to proceed without it. Future challenges to the McDonnell Douglas framework could fundamentally reshape how employment discrimination cases are litigated, potentially simplifying the burden on plaintiffs.

Implications for Employers

Ames provides several lessons for employers going forward.

The majority of the circuit courts of appeals had already rejected the “background circumstances” rule prior to the Court’s decision in Ames. Therefore, the substance of the decision, while changing the standard in a minority of circuits, may not have as significant an impact. With that said, we have seen in the past how certain highly publicized discrimination cases can trigger increases in employee claims. Given the current political climate, challenges to DEI programs, and recent Supreme Court decisions such as Students for Fair Admissions v. Harvard, employers may see an increase in reverse-discrimination and retaliation claims from employees belonging to “majority” groups.

Justice Thomas’s invitation to lower courts to cease applying the McDonnell Douglas framework does not officially overrule that case. Only time will tell if lower courts in fact accept that invitation. The Court’s decision underscores the importance for employers to ensure that they have legitimate, non-discriminatory reasons for making employment decisions that they will be able to defend if challenged.

It is important to emphasize that to establish a prima facie case of retaliation, the plaintiff does not need to be ultimately correct in their claim. Plaintiffs merely need to have a good faith belief that the conduct to which they objected was unlawful. It will be important to continue to observe the potential interplay between the ambiguity around what constitutes "illegal DEI" and potential attempts by plaintiffs to establish the good faith prong of a prima facie case of retaliation.

Ultimately, while DEI programs remain lawful, they are increasingly being scrutinized in court and being challenged generally. The Ames ruling—along with Justice Thomas’s concurrence—serves as reminder of the value for employers in reviewing their personnel policies and procedures and understanding how they are applied and impact all employee groups. Involving outside counsel in such reviews under attorney-client privilege may be particularly helpful in the current environment.

[1] 401 U.S. 424 (1971).

[2] 427 U.S. 273 (1976).

[3] 590 U.S. 644 (2020).

[4] 411 U.S. 792 (1973).