Reprinted with permission from the June 16th edition of The Legal Intelligencer. (c) 2025 ALM Media Properties. Further duplication without permission is prohibited.
On June 5, 2025, the United States Supreme Court, in an opinion authored by Justice Ketanji Brown Jackson, held that “reverse discrimination” cases should be reviewed under the same standard as minority-group discrimination cases. In Ames v. Ohio Department of Youth Services, a case from the United States Court of Appeals for the Sixth Circuit, Plaintiff Ames alleged discrimination on the basis of her membership in a majority group, or, “reverse discrimination.” The Court’s decision in Ames resolves a split in the circumstances regarding the evidence required for an employee to make a prima facie case of reverse discrimination.
Mariam Ames is a straight woman, who was employed by the Ohio Department of Youth Services as an administrator. Ms. Ames applied for a promotion, which she did not get, and was then demoted. The Ohio Department of Youth Services hired a gay male to fill her position, and promoted a gay woman to the position for which Ms. Ames sought a promotion. Ms. Ames claimed that the Ohio Department of Youth Services discriminated against her on the basis of her sexual orientation.
In the District Court and the Sixth Circuit, the courts granted (and then affirmed) summary judgment for Ohio Department of Youth Services, applying a test that required a reverse discrimination plaintiff to show “background circumstances” to support a reverse discrimination claim, in addition to the usual prima facie case required in discrimination cases, as articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). This “additional burden,” according to the Sixth Circuit, required Ames to present evidence that a member of the relevant minority group made the decision at issue, or that there is statistical evidence of a pattern of discrimination by the employer against members of the majority group.
Prior to the decision in Ames, there existed a split in the circuits regarding whether or not there existed an “additional burden.” The United States Courts of Appeals for the Eighth, Seventh, District of Columbia and Tenth Circuits all applied the heightened burden test in reverse discrimination cases. The Supreme Court noted that “all other circuits” did not impose a heightened burden on reverse discrimination cases, but this may not be entirely accurate either.
The Supreme Court, in an opinion authored by Justice Jackson, with concurrences from Justice Clarence Thomas and Justice Neil Gorsuch, with no dissents, articulated its test for “reverse discrimination” cases. The Court found that Title VII does not impose a heightened standard in reverse discrimination cases. Instead, the Court noted, the burden-shifting analysis of McDonnell Douglas applies with equal force to reverse discrimination cases. The first step of that analysis is plaintiff’s burden – a Title VII plaintiff must first produce enough evidence to support an inference of discriminatory motive. This first step, according to the Court, is “not onerous.” The Sixth Circuit’s error was to add an additional burden to that first step.
The Court first noted that the text of Title VII does not permit this additional burden – it prohibits discrimination against “any individual.” The court relied on Bostock v. Clayton County¸ 590 US 644, 659 (2020), for the principle that the law’s focus is on individuals rather than groups. The Court next noted that applying this “additional burden” is inconsistent with Supreme Court precedent prohibiting “inflexible applications” of the prima facie case test.
The problem lies in the articulation of the prima facie case under McDonnell-Douglas. As articulated in McDonnell-Douglas, the first part of the prima facie case is to prove that the plaintiff “belongs to a racial minority.” However, this requirement, “belongs to a racial minority”, does not exist in the text of Title VII, which prohibits discrimination against an “individual.”
Notably, Judge Thomas in his concurring opinion posited (again, see Justice Thomas’ dissent in Hittle v. City of Stockton, 604 U.S. ____ (2025)) that the McDonnell Douglas framework is an inappropriate judge-made rule with no basis in the text of Title VII, and that its use is particularly inappropriate in summary judgment cases. Judge Gorsuch joined in this concurrence, as he did in the Hittle dissent.
The Ames decision moves the Court closer to Judge Thomas’s goal, altering the first prong of the McDonnell-Douglas prima facie test to allow for reverse discrimination cases. More importantly, the decision is consistent with the Court’s decision in Bostock, and reinforces that the employment discrimination laws focus on the rights of individuals and not of specific groups.
This change in focus – from minority groups to individuals – requires employers to evaluate their employment decisions based on qualifications and business needs unrelated to an individual’s membership in a specific group. This marks a dramatic change for employers who have recently focused more on diversity, equity and inclusion initiatives. After Ames, employers can expect new legal challenges from traditional “majority” group members to those policies, and to employment decisions based on diversity, equity and inclusion goals. Employers must be able to defend employment decisions as based on merit and business needs, and unrelated to those initiatives. Employers have already started to examine whether those programs present a legal risk in light of some of the policies and executive orders of the Trump Administration. Ames provides yet another area of risk – the prospect of Title VII cases based on those policies.
Patricia C. Collins is a Partner and Employment Law Chair with Antheil Maslow & MacMinn, LLP, based in Doylestown, PA. Her practice focuses primarily on employment, commercial litigation and health care law. Patricia Collins can be contacted at 215.230.7500 ext. 126.