Leveling the Field – Supreme Court Removes Hurdle to Proving “Reverse” Discrimination

On June 5, 2025, the Supreme Court issued its decision in Ames v. Ohio Department of Youth Services. In this ruling, the Court resolved a longstanding circuit split regarding the standard for evaluating “reverse” discrimination claims. Specifically, the Court addressed whether plaintiffs who are members of a traditional “majority” group must demonstrate additional “background circumstances” beyond the usual proofs required to prevail on a Title VII discrimination claim. In the years since the creation of the McDonnell Douglas framework for proving discrimination, some federal circuit courts had imposed this heightened requirement, while others applied the same standard to all Title VII plaintiffs, regardless of race or group status. Ultimately, the Court ruled against requiring a plaintiff who is a member of a majority group to show that there are “background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.”

Background Circumstances Test: Circuit Split

For years leading up to SCOTUS’s decision in Ames, the Circuit Courts were split on whether plaintiffs bringing “reverse” discrimination claims under Title VII needed to prove “background circumstances” in addition to proving their prima facie case.

Circuits that did not apply a heightened standard requirement to prove a reverse discrimination claim included the Third and Eleventh Circuits.  However, the D.C., First, Second, Fourth, Fifth, and Ninth Circuits all previously adopted standards similar to the Sixth Circuit’s background circumstances test that SCTOUS struck down in Ames. These courts implemented a heightened test that required plaintiffs bringing “reverse” discrimination claims under Title VII to prove “background circumstances” in addition to their prima facie case. For example, the D.C. and Sixth Circuits required that plaintiffs to show “background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.”

Impact of Ames Decision

Following the Ames decision, the same legal standard now applies to all Title VII disparate treatment claims, including “reverse” discrimination claims brought by members of the majority group (such as men bringing gender discrimination claims or heterosexual employees bringing sexual orientation discrimination claims, like the plaintiff in the Ames case). Plaintiffs, regardless of majority or minority group status, only need to establish a prima facie case. This can be shown through circumstantial evidence including but not limited to biased or discriminatory comments by decision makers or differential treatment of similarly situated employees. In Circuits that did not adopt the “background circumstances” requirement, such as the Third Circuit, which includes Pennsylvania, New Jersey, and Delaware, the decision does not change existing federal law. In some states, the practical impact is also limited because their state anti-discrimination laws already apply the same standard to both traditional and reverse discrimination claims. In other states, such as New Jersey, that still apply the “background circumstances” test in evaluating claims under state anti-discrimination law, it remains to be seen whether state courts will change their test in response to the Ames ruling. 

Justice Thomas’s Concurrence

While Ames was a unanimous decision, Justice Thomas did pen a concurring opinion, joined by Justice Gorsuch. In his Concurrence, he criticized the use of the McDonnell Douglas burden-shifting framework in the context of summary judgment.[1] Justice Thomas argued that the framework lacks a basis in Title VII and has proven difficult for courts to apply consistently. Although Ames did not directly raise the question of whether McDonnell Douglas is the proper standard for evaluating Title VII claims at summary judgment, Justice Thomas indicated he would be open to revisiting the issue in a future case where it is squarely presented. While he did not suggest an alternative standard, his comments signal a potential shift that should be closely watched. At this time, it remains unclear whether any replacement test would make it easier or harder for employees to push their discrimination claims past summary judgment and to a trial, as no alternative framework has been proposed or evaluated by the Court.

Takeaways For Employers

As a matter of law, all employees have always been protected from discrimination based on race, gender, sexual orientation, and other legally protected categories under state and federal law.  However, as a practical matter, the Ames decision is expected to encourage more plaintiff-side employment attorneys to pursue claims on behalf of individuals from traditionally majority groups. This decision, combined with the broader cultural and political climate shaped by President Trump and other conservative politicians and personalities (including the backlash against Diversity, Equity, and Inclusion initiatives), heightens the legal risk for employers when considering adverse employment actions against members of traditionally majority groups. As a result, employers should (as always) ensure that termination decisions are well-documented, progressive disciplinary steps such as written warnings are followed where appropriate, and that employment counsel is involved with challenging employment decisions. For guidance on how the Ames decision may impact your organization, contact Obermayer’s labor and employment attorneys for a consultation. 

[1] Under McDonnell Douglas burden-shifting, the employee first must establish the basic elements of a discrimination claim (the prima facie claim) and then the burden shifts to the employer to articulate a legitimate business reason for the employment decision being challenged.  Once the employer identifies that reason, the burden shifts back to the employee to prove that the employer’s reason was a pretext for unlawful discrimination.

The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.