On June 5, 2025, the U.S. Supreme Court altered the landscape for employers facing “reverse discrimination” Title VII lawsuits in the Sixth, Seventh, Eighth, Tenth, and DC Circuits, by striking down a rule that had required plaintiffs from “majority groups” to allege additional “background circumstances” to state a prima facie case of employment discrimination.  Examples of “background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority” included statistical data that the employer had engaged in a pattern of discrimination against majority groups or a member of the relevant minority group made the employment decision that allegedly harmed the member of the majority group.   In the other circuits, no such additional pleading requirement was required in reverse discrimination lawsuits.  Justice Jackson authored the Court’s 9-0 opinion, Ames v. Ohio Dept. of Youth Servs., No. 23-1039, and Justice Thomas filed a concurring opinion, joined by Justice Gorsuch.

As a practical matter, more “reverse discrimination” lawsuits in the Sixth, Seventh, Eighth, Tenth, and DC Circuits may survive a motion to dismiss—or employers may elect not to move to dismiss if the complaint’s allegations satisfy a Title VII plaintiff’s prima facie burden.  That said, the opinion does not alter the liability framework—employers can still achieve summary judgment dismissals of Title VII employment discrimination lawsuits by demonstrating that the employment decision at issue was made for legitimate, non-discriminatory reasons. 

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In Ames, the plaintiff alleged that her employer discriminated against her because of her heterosexual orientation when she was denied a promotion that was given to a lesbian woman and then later demoted and her prior position filled by a gay man.  Slip Op. at 2.  Analyzing her claim under the long-standing McDonnell Douglas evidentiary framework, derived from McDonnell Douglas Corp. v. Green, 411 U. S. 792 (1973), the District Court granted summary judgment for the employer, noting the plaintiff failed to make out a prima facie case of employment discrimination because she had not presented evidence of “background circumstances” that suggested her employer was the “rare employer who discriminates against members of a majority group.”  Slip Op. at 2.  The Sixth Circuit affirmed.

The McDonnell Douglas framework is a three-step burden shifting framework for evaluating claims under Title VII’s disparate treatment provision, which bars employers form intentionally discriminating against their employees on the basis of race, color, religion, sex, or national origin.  Under the framework, a plaintiff bears the initial burden of establishing a prima facie case by producing enough evidence to support an inference of discriminatory motive.  If the plaintiff succeeds, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the allegedly discriminatory action.  The burden then shifts back to the plaintiff to show that the employer’s stated justification was pretext for discrimination. 

In Ames, the Supreme Court held that the “background circumstances” rule was inconsistent with the text of Title VII:  Title VII “draws no distinctions between majority-group plaintiffs and minority-group plaintiffs,” Slip Op. at 5, and “Congress left no room for courts to impose special requirements on majority-group plaintiffs alone.”  Id. at 6.  Furthermore, the Court reasoned that the “background circumstances” rule was inconsistent with Court precedent rejecting “inflexible formulations” of the prima facie standard in disparate treatment cases.  Id. at 7.

The Decision’s Impact on DEI Programs

In a statement from the U.S. Equal Employment Opportunity Commission, Acting Chair Andrea Lucas applauded the Ames decision for “dispell[ing] the common misnomer of ‘reverse’ discrimination” and clarifying that all discrimination is unlawful discrimination “no matter the identity of who engaged in the discrimination or which workers were harmed or benefited.” 

As a result of the Ames decision, all discrimination claims will be evaluated under the same evidentiary standards, which could lead to an increase in “reverse discrimination” litigation in the circuits that previously applied the “background circumstances” rule, particularly because plaintiffs from majority groups will have an easier time surviving a motion to dismiss.  However, employers can still obtain dismissals of Title VII lawsuits at the summary judgment stage by demonstrating that the employment decision at issue was made for a legitimate, nondiscriminatory reason. 

In her statement on Ames, Acting Chair Lucas quoted Justice Thomas’s observation in the concurrence that DEI initiatives “have often led to overt discrimination against those perceived to be in the majority,” and she noted that employees who have “experienced DEI-discrimination at work should be encouraged” by the decision.  As such, while DEI programs have been under scrutiny since the Supreme Court’s Students for Fair Admissions ruling in June 2023 and the Trump administration’s recent executive orders, Lucas’s statement suggests that scrutiny will continue in the aftermath of Ames.

Justice Thomas’s Concurrence Urges Rethinking of McDonnell Douglas

In his concurring opinion, Justice Thomas agreed with the majority that the “background circumstances” requirement does not comport with the plain language of Title VII.  While he acknowledged that the viability of the McDonnell Douglas framework was not before the Court in Ames, Justice Thomas urged litigants to bring a case before the Court that would provide the opportunity to strike down this other “judge-made construct.”  Thomas, J., concurring, slip. Op. at 1-3, 10-14.  Doing away with the framework would, Justice Thomas argued, align Title VII cases with Federal Rule of Civil Procedure 56, by requiring a plaintiff to only “present sufficient evidence to create a genuine dispute as to whether the employer’s stated reason was pretextual,” rather than the framework’s requirement that the plaintiff prove such by a “preponderance of evidence.”  Thomas, J., concurring, slip. Op. at 10-11 (cleaned up).  In Justice Thomas’s view, the McDonell Douglas framework “requires a plaintiff to prove too much at summary judgment.”  Id. at 10.  With Justice Thomas usually seen as a pro-employer jurist, his concurrence is a somewhat interesting turn of events.  If the Court were to eventually do away with the McDonnell Douglas framework, the likely result would be fewer employers achieving summary judgment dismissal of Title VII claims and more employment discrimination cases going to trial.

If you have questions about programs and practices that may be implicated by Ames, please contact members of the employment practice group.