Did the Supreme Court’s unanimous decision in Ames v. Ohio Dept. of Youth Serv., 145 S.Ct. 1540 (2025), decided in June of this year, make it easier for employees to bring discrimination lawsuits against their employers? The outcome of the case, clarifying the standard for discrimination, certainly appears to leave open the possibility of expanded employer liability under Title VII.
Before turning to the import of the Ames or Muldrow decisions, it is important to understand the law – Title VII of the Civil Rights Act of 1964 (Title VII) – that was the basis for both of these decisions. Title VII is a federal law that prohibits discrimination in any aspect of employment on the basis of protected characteristics of employees, including race, color, religion, sex (later expanded to include sexual orientation and gender identity), and national origin. Title VII makes it unlawful to discriminate in hiring and firing, compensation, assignment or classification of workers, transfer, promotion, layoff or recall, advertisement, recruitment, and more.
Discrimination under Title VII has largely been viewed as protecting minority groups; however, it does not expressly prohibit claims of discrimination against majority groups. Claims of discrimination under Title VII brought by a member of the majority have been referred to as “reverse” discrimination claims. There is little difference between what Title VII protects between a typical claim of discrimination and reverse discrimination, but case law developed a different, heightened legal standard between these two types of claims. Specifically, courts use to require majority-group plaintiffs to show “background circumstances” indicating that a defendant accused of workplace bias is the “unusual employer who discriminates against the majority.” The “background circumstances” standard required majority-plaintiffs to meet a higher threshold to showcase discrimination compared to minority-plaintiffs, thereby making claims harder to pursue.
In Ames, a heterosexual woman (a majority-group) was passed over for a promotion in favor of a lesbian woman (a minority-group), and was later demoted, and her prior position filled by a gay man (a minority-group). Plaintiff filed suit alleging discrimination under Title VII. Both the district court and Sixth Circuit dismissed Plaintiff’s claim because Plaintiff could not meet the heightened “background circumstances” standard. The Supreme Court, however, in a unanimous decision, rejected any heightened pleading standard, finding that there can be no distinction between majority-group and minority-group plaintiffs. The Court held that when Congress established protections for everyone, they did not differentiate between minorities and majorities and therefore left no room for courts to impose special requirements. As Justice Jackson’s opinion stated, “the standard for proving disparate treatment under Title VII does not vary based on whether or not the plaintiff is a member of a majority group...the same protection should apply to every individual.”
The Ames decision comes just one year after the Supreme Court decided Muldrow v. St. Louis, which was discussed in a prior edition of SuperVision. Muldrow lowered the bar for asserting a claim of discrimination under Title VII (which has since been expanded to the ADA and ADEA), rejecting lower court precedent that required a plaintiff to show “significant harm” from a discriminatory act. Rather than requiring some heightened level of harm (courts had employed terms like significant or material), the Supreme Court in Muldrow said it was necessary only to show “some harm.” While Muldrow concerned an involuntary transfer, we have seen decisions from around the country expanding Muldrow’s reach to a variety of other employment actions, including issuance of performance improvement plans, suspensions with pay, failure to accommodate, and training opportunities.
While Ames and Muldrow concerned different types of claims under Title VII, they shared a common element: to state a claim under prior precedent, plaintiffs were subjected to a heightened pleading standard. In both cases and contexts, the Supreme Court rejected a heightened pleading standard. By imposing a heightened pleading standard, courts were often assessing whether the harm was of a sufficient level of severity rather than based on an individual’s protected characteristic. It is the latter that Title VII protects.
Spilman’s recommendation remains the same as it was post-Muldrow. Employers need to ensure managers are trained on preventing and addressing discrimination in the workplace. Further, employers need to take prompt corrective action whenever issues arise and regardless of whether a member of the majority or minority raised them. Ensuring that decisions are not being made based on an individual’s membership (or non-membership) in a protected class is the primary obligation of an employer vis-à-vis employment discrimination statutes.
Post-Ames and other actions being taken at the state and federal levels, employers also need to be mindful of how their diversity, equity, and inclusion policies can create potential liability. Employers with questions about navigating employment issues post-Ames and Muldrow, including developing legally compliant DEI policies, should consult their legal counsel.
Two Spilman Summer Associates contributed to this article. Addelyn C. Slyh is a rising third year law student at the University of Kentucky J. David Rosenberg College of Law. Ms. Slyh served as a Summer Associate in Spilman’s Charleston office. Riley D. Breen is a rising second year law student at the University of North Carolina. Mr. Breen served as a Summer Associate in Spilman’s Winston-Salem office.
