In Ames v. Ohio Department of Youth Services, the U.S. Supreme Court delivered a unanimous decision that quietly made a big statement: when it comes to workplace discrimination claims under federal law, majority-group plaintiffs are no longer required to take extra steps in proving workplace discrimination. This decision is significant for employment discrimination litigation, but what does it practically mean for employers, employees, and DEI programs?
What Happened in Ames?
The plaintiff in Ames, a heterosexual woman working for a state agency, claimed she was demoted and passed over for a promotion in favor of colleagues who identified as LGBTQ+. She brought a discrimination claim alleging as much under Title VII of the Civil Rights Act of 1964. But before the court even considered whether her claim held water, she had to show that her employer was the rare kind that discriminates against the members of a majority group.
In legal terms, this was known as the “background circumstances” requirement, which applied a heightened standard of evidence for “reverse discrimination.” A plaintiff might have to show, for example, that an employer had a history or a pattern of discriminatory acts against members of a majority group to bolster his or her claim of discrimination. This added hurdle intended to recognize that minority groups were traditionally the targets of discrimination, which prompted the passing of anti-discrimination laws in the first place, whereas majority groups were rarely singled out for their identities.
The “background circumstances” requirement had been around for decades in several federal circuits (including in the Seventh Circuit where I write from in Chicago), but it was never instituted in other federal circuits, creating a circuit split. The Supreme Court unanimously threw out the “background circumstances” requirement, saying that the language of Title VII itself—which prohibits employers from discriminating on the basis of race, color, religion, sex, or national origin—doesn’t distinguish minority- and majority-group plaintiffs. Rather, the same standard must be applied across the board.
What Does Ames Mean for Employers?
- The same rules apply to everyone now. Employers residing in circuits that used to apply a heightened standard to “reverse discrimination” claims must adjust their expectations and their legal defenses accordingly.
- Document, document, document. As always, the best defense to a discrimination claim is a clear, consistent, and well-documented decision-making process.
- Diversity, equity, and inclusion (DEI) efforts aren’t banned. The court did not say that diversity initiatives are illegal, but they need to be thoughtful. This decision serves as a reminder to employers that all employment decisions must comply with Title VII and must be neutral as to protected categories, regardless of who the affected employee is.
- More claims are likely coming. Majority-group plaintiffs who may have been deterred by the “background circumstances” barrier may now be more likely to file claims. That doesn’t mean they’ll win—indeed it is possible that Ms. Ames will still lose at summary judgment—but it does mean their cases will get a fair hearing.
What Does Ames Mean for Employees?
- Majority-group employees face less of a burden. If an employee is passed over for a promotion or treated differently because of their majority race, sex, or sexual orientation, they don’t have to offer up proof on “background circumstances” to prove the employer is the rare employer who discriminates against such employees.
- Strong evidence is still required. This decision did nothing to change the fact that majority-group plaintiffs’ claims still have to be solid. This ruling only affects the threshold question of whether they can get a foot in the door. Once inside, these employees must still prove their employer’s proffered non-discriminatory reason for an adverse action was false and that discrimination was the real reason.
What the Ames Decision Doesn’t Do
- It doesn’t change the rules for minority-group plaintiffs. Those claims proceed as before, using the same standards of evidence as have been in place prior.
- It doesn’t strike down DEI programs. DEI programs were not immediately affected by this opinion, although it could impact how they are administered. For instance, if the employer maintains an affinity group as part of a DEI program, the group should be open to all employees regardless of their membership in any protected category.
- It doesn’t make reverse-discrimination claims easier to win. The decision simply makes “reverse discrimination” claims easier to bring without facing an additional burden of proof for majority-group plaintiffs. It does not, however, guarantee success in court.
Ames didn’t come with the fireworks many attorneys and legal scholars predicted. Many commentators expected the high court to fundamentally alter how lower courts analyze Title VII claims beyond the “background circumstances test.” That didn’t’ happen (yet), but it’s an important recalibration of how courts handle Title VII. Whether you're an employer or employee, the message is the same: discrimination is judged by the same legal yardstick, no matter who brings the claim.