On February 26, 2025, the Supreme Court heard oral arguments in Ames v. Ohio Department of Youth Services, which is a case that will determine whether a plaintiff bringing a so-called reverse discrimination claim (where, for example, a majority group employee such as a white male alleges race discrimination) has a more demanding burden of proof than a plaintiff in a minority group. The specific question is whether Title VII of the Civil Rights Act requires a majority group plaintiff to show additional “background circumstances” indicating that their employer is one who discriminates against the majority in order to establish a prima facie case of discrimination.
As discussed below, there is a circuit split among federal courts regarding the “background circumstances” evidentiary burden, with some circuits adopting the approach and others taking the position that Title VII provides no basis for requiring members of the majority group show more evidence of discrimination.
The “Background Circumstances” Requirement
Title VII prohibits employment discrimination based on race, color, religion, sex, or national origin. When bringing a discrimination claim under Title VII, an employee is generally required to establish a prima facie case of discrimination by showing: (1) they are a member of a protected class; (2) they suffered an adverse employment action; (3) they met their employer’s legitimate work expectations; and (4) other employees outside of their protected class(es) were treated more favorably.
Some jurisdictions, including the Sixth Circuit in Ames, have adopted a rule requiring majority plaintiffs to demonstrate “background circumstances” in addition to the other elements required to establish a prima facie case of discrimination. Specifically, these jurisdictions require majority plaintiffs to produce evidence showing “background circumstances” to support the suspicion that the employer is the unusual employer who discriminates against the majority. As courts in the Seventh Circuit have held, a plaintiff in a reverse discrimination case must provide evidence of background circumstances showing an inference that the “employer has reason or inclination to discriminate invidiously against [the majority] or that there is something ‘fishy’ about the facts at hand.” 1
Notably, appellate courts are significantly split concerning the application of the background circumstances requirement. The Sixth, Seventh, Eighth, Tenth and D.C. circuits apply the approach, while the First, Second, Third, Fourth, Fifth, Ninth, and Eleventh Circuits do not follow the approach.
Factual Background of Ames
Marlean Ames, a heterosexual woman, worked at the Ohio Department of Youth Services (the Department) as its Administrator of the Prison Rape Elimination Act. During her employment, Ames interviewed but was not selected for a position as the Department’s Bureau Chief of Quality, and she was later demoted from her position as Administrator. The Department subsequently chose a gay man to replace her position as Administrator and selected a gay woman as its Bureau Chief of Quality. Based on these decisions, Ames brought a lawsuit under Title VII alleging that the Department discriminated against her, in part, based on her sexual orientation.
The district court granted summary judgment to the Department, holding that Ames lacked evidence of “background circumstances” necessary to establish her a prima facie case of sexual orientation discrimination. On appeal, the Sixth Circuit noted that plaintiffs typically make a showing of background circumstances with evidence that a member of the relevant minority group (in Ames, LGBTQ+ people) made the employment decision at issue, or with statistical evidence showing a pattern of discrimination by the employer against members of the majority group. The Sixth Circuit ultimately held that Ames foundered in her efforts to establish the necessary background circumstances and affirmed the district court’s decision.
Prognostication?
It seems unlikely that the same panel of justices that decided Students for Fair Admissions v. Harvard in 2023, a case in which the Supreme Court invalidated affirmative action in school admissions programs, will conclude that the imposition of an additional legal hurdle only for majority group plaintiffs is lawful. While legal scholars may disagree as to whether the application of the “background circumstances” rule constitutes illegal discrimination, Justice Roberts’ statement in Students for Fair Admissions that “eliminating racial discrimination means eliminating all of it” may forecast how Ames will be decided.
Employer Takeaways
As noted, the Supreme Court recently heard oral arguments in Ames, which means we should see a decision soon. The court’s decision should provide clarity as to the evidentiary standard for reverse discrimination claims. Employers should note that if the Supreme Court invalidates the background circumstances rule, employees will have a more streamlined approach to establish a reverse discrimination claim.
Regardless of the outcome, employers should remain cognizant that they have a legal obligation to ensure that employment decisions, such as hiring, firing, promotions, and demotions, are based on legitimate, non-discriminatory reasons. Training employees involved in these decisions to understand and apply objective criteria is essential in preventing discrimination claims. In addition to proper training, employers should implement thorough documentation practices. Carefully recording the reasons for each employment action helps create a clear, defensible record in case of disputes or legal challenges. Proper documentation serves not only as a safeguard against potential lawsuits but also demonstrates a commitment to fair and consistent decision-making processes.
[1] Dunlevy v. Langfelder, 52 F.4th 349, 353 (7th Cir. 2022)
