Overview
Corporations are likely to see an increase in Title VII lawsuits from majority-group plaintiffs. Last week, in a unanimous opinion, the US Supreme Court struck down a judge-made rule that required plaintiffs from majority groups to provide more evidence than minority plaintiffs when making an initial showing of Title VII discrimination. See Ames v. Ohio Dep't of Youth Services, No. 23-1039, 2025 WL 1583264 (U.S. June 5, 2025). According to the Court, the "background circumstances" rule for a prima facie case of discrimination, which required majority-group plaintiffs to demonstrate that the defendant is the "unusual employer who discriminates against the majority," did not align with the text of Title VII of the Civil Rights Act of 1964. Id. at 2.
Key Takeaways
- The Supreme Court unanimously struck down the "background circumstances" rule, used in the Sixth, Seventh, Eighth, Tenth and DC circuits, which increased the burden on majority-group plaintiffs in Title VII discrimination cases.
- The decision raises the likelihood of "reverse discrimination" lawsuits from majority-group plaintiffs (e.g., white or heterosexual employees).
- In line with this decision, the current administration is targeting diversity, equity and inclusion (DEI) programs that may favor minority groups over majority groups, emphasizing the elimination of corporate policies and practices that exemplify "race- and sex-based preferences."
- Employers should review DEI and employment policies and practices to ensure compliance with anti-discrimination laws and mitigate legal risks.
Deep Dive
Title VII prohibits discrimination against individuals based on race, color, religion, sex, or national origin without distinguishing between majority and minority groups. Yet, in five circuits covering 20 states and Washington DC, courts applied a different standard on majority-group plaintiffs alleging workplace discrimination. Title VII plaintiffs, such as a white employee bringing a racial discrimination claim or a heterosexual employee bringing a sexual orientation claim, bore the heightened burden of showing "background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority." See Ames, 2025 WL 1583264, at *2. After last week’s decision in Ames, this "background circumstances" rule no longer applies.
The elimination of this heightened standard is particularly relevant given the current administration’s vigorous pursuit of potential Title VII violations related to corporate DEI programs. Although Title VII claims are commonly brought by minorities from groups that have been historically disadvantaged and targeted for group-based discrimination, members of majority groups are increasingly bringing Title VII claims. These "reverse discrimination" cases are under close watch more than ever before. On President Trump's first day in office, he launched an expansive effort to reshape enforcement of federal anti-discrimination laws by focusing on DEI practices. See Ending Illegal Discrimination and Restoring Merit-Based Opportunity, 90 Fed. Reg. 8633, 8633 (Jan. 21, 2025) (the "Order"). The Order directed agencies to investigate and pursue claims against companies that use "race and sex-based preferences" under the "guise of DEI" by providing benefits to minority groups at the expense of members of majority-groups who are excluded from those benefits.
The plaintiff in this case, Marlean Ames, was subject to the "background circumstances" rule because of her identity as a heterosexual woman alleging sexual orientation discrimination by her employer. In 2019, supervisors at the Ohio Department of Youth Services denied Ames a promotion and hired a lesbian woman instead. Shortly afterward, her supervisors fired her and offered her a different role—one that would amount to a demotion and a significant pay cut. Ames accepted the demotion and later learned that the Department hired a gay man to fill the role from which she was fired. She then filed a lawsuit against the Department under Title VII, alleging that her supervisors denied her the promotion, fired her, and demoted her because of her sexual orientation. The District Court granted summary judgment to the Department, and the Sixth Circuit affirmed.
At each stage in this case, the McDonnell Douglas framework —a three-step burden-shifting test for evaluating Title VII disparate treatment claims—was at play. In the first step, "the plaintiff bears the 'initial burden' of 'establishing a prima facie case' by producing enough evidence to support an inference of discriminatory motive.” See Ames, 2025 WL 1583264, at *3 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). The Sixth Circuit determined that Ames would have easily passed this step if not for her inability to meet the "background circumstances" requirement. See Ames v. Ohio Dep’t of Youth Services, 87 F.4th 822, 825 (6th Cir. 2023). A plaintiff typically clears the background circumstances hurdle by providing proof “that a member of the relevant minority group . . . made the employment decision at issue, or with statistical evidence showing a pattern of discrimination by the employer against members of the majority group.” Id.
Upon reviewing this heightened requirement, Justice Ketanji Brown Jackson, writing for the Court, reasoned that the evidentiary showing was improper because it lacked any basis in the text of Title VII. The statute barred discrimination against any individual, "without regard to that individual's membership in a minority or majority group," and the state of Ohio brought no sufficient argument to contest this plain language of the statute. The Supreme Court therefore vacated the decisions below and remanded the case for application of the proper standard. See Ames, 2025 WL 1583264, at *6.
As workplace law continues to evolve, employers should also note that Justice Clarence Thomas's concurrence sharply criticized the well-established McDonnell Douglas framework. He stated that, like the "background circumstances" rule, the McDonnell Douglas framework is also "judge-made." See Ames, 2025 WL 1583264, at *6-7 (Thomas, J., concurring). Given that courts often rely on this framework in Title VII cases —as well as cases involving other discrimination laws like the Americans with Disabilities Act and the Age Discrimination in Employment Act —a shift toward Justice Thomas' viewpoint could lead to a major overhaul of employment discrimination law as we know it.
Justice Thomas's concurrence also, notably, aligns with the current administration's concerns that DEI has become a vehicle for illegal workplace discrimination. In a footnote, he states:
But, a number of this Nation’s largest and most prestigious employers have overtly discriminated against those they deem members of so-called majority groups. 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.
Id. (citation omitted).
By eliminating the "background circumstances" rule, the Court has paved the way for all individuals to face the same initial burden under Title VII, while signaling a shift in how corporations and courts approach claims of workplace discrimination. Employers should act promptly to evaluate their DEI initiatives and adapt their policies to the evolving legal landscape. Steptoe stands ready to advise by evaluating potential legal risks associated with your company's DEI initiatives or employment practices and offering recommendations to mitigate those risks.
