Earlier this month, in a long-awaited ruling, the U.S. Supreme Court sided with a straight white woman who claimed to have lost out on two positions to LGBT candidates and was also demoted in favor of them. The Court held that majority groups do not face a higher legal standard than minorities under Title VII of the Civil Rights Act (Title VII), the federal law that prohibits employment discrimination on the basis of protected characteristics. The Court's decision in Ames v. Ohio Department of Youth Services could make it easier for members of majority subsets of protected categories to successfully sue their employers for discrimination.
The plaintiff in the case, Marlean Ames, a heterosexual woman, had worked for the Ohio Department of Youth Services (DYS) since 2004. She applied for a new management position in 2019 but, according to Ames, was passed over in favor of a lesbian woman. At the time, her supervisors said she lacked vision and leadership skills, even though the woman who was hired had been at DYS for less time and lacked a college degree. Shortly thereafter, Ames was demoted and took a substantial pay cut, and a gay man was hired to fill her senior position.
The lower courts—the U.S. District Court for the Southern District of Ohio and the Sixth Circuit Court of Appeals—both concluded that Ames failed to meet her prima facie burden under Title VII by not demonstrating that DYS acted with a discriminatory motive. Specifically, the lower courts noted that Ames was unable to show "background circumstances to support the suspicion that [DYS] is that unusual employer who discriminates against the majority." Therefore, the lower courts required her to make this showing "in addition to the usual ones for establishing a prima facie case," or what the Court called the "background circumstances" rule.
In an opinion written by Justice Ketanji Brown Jackson, the Court sided 9–0 with Ames. The Court found that the text of Title VII does not differentiate between majority and minority groups under Title VII. Jackson wrote that the standard for proving disparate treatment "does not vary based on whether or not the plaintiff is a member of a majority group. … The 'background circumstances' rule flouts that basic principle." In setting the same protections regardless of the individual plaintiff, the Court said, Congress did not authorize courts to mandate special requirements for solely majority-group plaintiffs.
Ames is the first decision by the Court that examines so-called reverse discrimination since 2023's Students for Fair Admissions v. Harvard, which invalidated race-based admissions programs at institutions of higher education. It was also made against the backdrop of last year's unanimous Supreme Court decision in Muldrow v. City of St. Louis, which lowered the threshold of harm necessary to bring a claim of discrimination under Title VII. These decisions, taken altogether, could portend the state of the law for the administration of diversity, equity, and inclusion (DEI) initiatives and what the Court views as "illegal DEI." It is likely that the Court would be skeptical of maintaining the legality of at least some DEI programs as currently constituted, thus leading to an increase in claims under Title VII.
The decision in Ames was issued in the context of the Trump administration's targeting of what it calls "illegal DEI." At its core, that effort reflects the same practical concern as addressed in Ames: how to protect majority groups from discrimination.
Now, for example, in light of the Court's decision, if an employer promotes an employee based on sexual orientation to meet diversity goals, a heterosexual employee can more easily bring a successful claim under Title VII and meet their initial burden of proof. The decision similarly makes it easier for the Department of Justice to establish that an employer has violated Title VII if it were to deny employment opportunities to majority group members to achieve diversity goals.
What Ames Means for Employers
- Prepare for Increases in Internal Investigations and Lawsuits: Now that the evidentiary standard for majority group employees has been confirmed, employers should expect to see more "reverse discrimination" claims brought under Title VII
- Review Policies and Practices: Employers should ensure that their employment practices, as outlined in their policies, are applied consistently and equitably to ensure that no group—majority or otherwise—is disadvantaged. In particular, criteria for hiring, promotions, and transfers should be carefully vetted by an employment attorney
- Educate Employees: All employees, whether they are responsible for hiring or not, should become familiar with the holding in Ames because it opens the door to new discrimination claims that did not previously exist
- Train Personnel: Hiring employees should be trained on unbiased decision-making, which can be achieved by a well-prepared human resources team
Employers with questions about how this decision impacts their current practices should contact the authors of this article or any other attorney in Venable's Labor and Employment Group.