Labor and Employment associate Kevin Kelleher recently published an article outlining the shifting frameworks and legal distinctions surrounding discrimination and reverse discrimination claims.
In June, the United States Supreme Court ruled that all employees are to be treated equally under Title VII. In Ames v. Ohio, the Supreme Court rejected the heightened standard the Sixth Circuit required of employees alleging reverse discrimination. Previously, the Sixth Circuit required members of the so-called majority groups to prove their employer was the unusual one that discriminated against them rather than minority groups. The Supreme Court found this requirement inconsistent with Title VII, which makes no distinction between majority and minority groups. Now, all claims for discrimination under Title VII are treated the same. As a result, all employers are expected to treat their employees equally, calling into question the legality of Diversity, Equity, and Inclusion (“DEI”) programs.
Discrimination Claims Under Title VII
The McDonnell Douglas Burden Shifting Framework
Most claims for employment discrimination arise under Title VII of the Civil Rights Act of 1964.[1] Title VII prohibits employers from treating their employees differently on the basis of their “race, color, religion, sex, or national origin.”[2] Courts evaluate these claims based on the evidence the plaintiff submits to support their allegations. A plaintiff can present “direct evidence,” which “proves the fact of intentional discrimination without inference or presumption.”[3] However, these cases are rare.[4] Recognizing this, the Supreme Court established a burden shifting framework to allow plaintiffs to prove their case with indirect evidence.
Under a burden shifting framework, the plaintiff must first demonstrate a prima facie case of discrimination.[5] Then, the employer must establish a legitimate non-discriminatory reason for their conduct. Finally, the plaintiff must prove the employer’s articulated reason is a pretext for unlawful discrimination. To establish a prima facie case for discrimination, a plaintiff must establish the following:
- They are a member of a protected class;
- They are qualified for the position at issue;
- They were subject to an adverse employment action; and
- Circumstances giving rise to an inference of discrimination.
Where a plaintiff establishes a prima facie case, they create an “inference of discrimination” that the employer must rebut with a nondiscriminatory explanation for their conduct.[6] The employer’s failure to present evidence of a legitimate non-discriminatory reason leaves that inference unrebutted and creates a “mandatory presumption” of discrimination.[7]
The Sixth Circuit Distinguishes Claims for Discrimination and Reverse Discrimination
In 1985, the Sixth Circuit imposed a greater requirement on employees from majority groups (such as males or white employees) alleging discrimination.[8] In doing so, it reasoned “this nation’s history of discrimination” was “so entrenched” that it permitted courts to infer discrimination against minority groups from actions that were “otherwise unexplained.”[9] Accordingly, it imposed a greater burden on members of majority groups: to prove a prima facie case for reverse discrimination, a plaintiff had to establish “background circumstances [to] support the suspicion that the defendant is that unusual employer who discriminates against the majority.”[10]
The Supreme Court Abolishes the Background Circumstances Prong
Factual and Procedural Background
Plaintiff-Appellant Marlean Ames worked for the Ohio Department of Youth Services (“ODYS”) as a program administrator. In 2019, Ames, a heterosexual woman, applied for a promotion to a management-level position. ODYS rejected her application and selected another candidate, a member of the LGBTQ community. Then, ODYS demoted Ames and replaced her with another employee who was also a member of the LGBT community.[11]
Because her orientation placed her in the majority group, the district court required Ames to establish background circumstances “sufficient to demonstrate that [ODYS] discriminated against a majority group.”[12] When she failed to do so, the court dismissed her claims for discrimination on summary judgment.[13] On appeal, the Sixth Circuit affirmed, finding Ames did not make “the necessary showing of ‘background circumstances.’”[14]
The Supreme Court’s Holding
The Supreme Court unanimously reversed the Sixth Circuit’s decision. It found the “additional ‘background circumstances’ requirement” to be inconsistent “with Title VII’s text” and its own “case law construing the statute.”[15] The plain language of Title VII’s anti-discrimination provision protects prohibits employers from discriminating against “any individual with respect to [their] compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”[16] “Congress left no room for courts to impose special requirements on majority-group plaintiffs alone.”[17]
To the contrary, the Supreme Court made clear: Title VII prohibited racial discrimination against white employees “upon the same standards as would be applicable were they [minorities].”[18] The Sixth Circuit’s “‘background circumstances’ rule flout[ed] that basic principle.”[19]
Impact on the Future
Many employers believe fostering a diverse and inclusive workplace is an important part of a functioning business. Following Ames, employers need to rethink how they achieve this. Hiring and promotion policies that tend to favor one group over another have always been illegal. However, under Ames, the very policies that may have protected employers from claims of discrimination may now be used against them. Employers should scrutinize their policies and procedures to ensure employees are not disproportionately losing opportunities. If necessary, employers should consult with attorneys to ensure their policies comply with the law.
The Supreme Court has made clear: Title VII does not distinguish between minority and majority groups. Employers cannot favor one group over the other. They must now work carefully to ensure they treat all their employees equally.
[1] Ohio also prohibits discrimination based on “race, color, religion, sex, military status, national origin, disability, age, or ancestry.” R.C. 4112.02(A). Ohio courts generally follow federal law in applying this statute. See, e.g., Plumber & Steamfitters Joint Apprenticeship Commt. v. Ohio Civil Rights Comm., 66 Ohio St.2d 192, 196 (1981).
[2] 42 U.S.C. 2000e-2(a).
[3] (Cleaned up.) Portis v. First Natl. Bank of New Albany, 34 F.3d 325, 328-29 (5th Cir. 1994).
[4] Kline v. Tenn. Valley Auth., 128 F.3d 337, 348 (6th Cir. 1997) (“Rarely can discriminatory intent be ascertained through direct evidence because rarely is such evidence available.”)
[5] McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
[6] St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 528 (1993).
[7] Id.
[8] See Murray v. Thistledown Racing Club, Inc., 770 F.2d 63 (6th Cir. 1985).
[9] Id. at 67.
[10] Id., citing Parker v. Baltimore & Ohio RR. Co., 652 F.2d 1012, 1017 (D.C. Cir. 1981).
[11] See Ames v. Ohio Dept. of Youth Servs. (Ames II), 87 F.4th 822, 824 (6th Cir. 2023).
[12] Ames v. Ohio Dept. of Youth Servs. (Ames I), 2023 U.S. Dist. LEXIS 44979, *23 (S.D. Ohio Mar. 16, 2023).
[13] Id. at 35.
[14] Ames II at 825.
[15] Ames v. Ohio Dept. of Youth Servs. (Ames III), __ U.S. __, 145 S.Ct. 1540, 1544 (2025).
[16] Id. at 1546, citing 42 U.S.C. 2000e-2(a)(1).
[17] Id.
[18] (Emphasis in original.) Id., citing McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 280 (1976).
[19] Id.