SCOTUS rejects heightened burden for “reverse” discrimination claims

In Ames v. Ohio Department of Youth Services, a 9 – 0 decision delivered by Justice Ketanji Brown Jackson on June 5, 2025, the Supreme Court of the United States rejected a Sixth Circuit doctrine imposing a heightened evidentiary burden for lawsuits by non-minorities under Title VII of the Civil Rights Act of 1964, which prohibits discrimination by employers on the basis of race, color, religion, sex, or national origin.

Under the Sixth Circuit’s doctrine (versions of which had also been applied by the Seventh, Eighth, Tenth and DC Circuits), any non-minority seeking to establish a claim was required to show not only circumstances giving rise to an inference of unlawful discrimination, but also additional “background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.” While Ames rejects that “background circumstances” requirement as inconsistent with Title VII’s text and relevant precedent, the case may end up being known less for that relatively straightforward holding than for a concurrence by Justice Thomas calling for a significant change in how courts approach summary judgment in Title VII cases more generally.

Ames was originally brought by a woman named Marlean Ames, who alleged that her employer, the Ohio Department of Youth Services, passed her over for a promotion and then demoted her because she was not gay. At summary judgment, such a claim would typically be governed by the well-known, often-applied framework the Court established in McDonnell Douglas Corp. v. Green,¹ the first step of which requires a plaintiff to establish a prima facie case by showing that she suffered an adverse employment action “under circumstances which give rise to an inference of unlawful discrimination.”² Ames attempted to satisfy that burden by alleging that both the job for which she was passed over and the job from which she was demoted were subsequently filled by gay people. But both the district court and the Sixth Circuit rejected her claim at summary judgment. As a member of a majority group, they held, Ames was required to present additional background evidence regarding her employer’s proclivity for discriminating against people like her. Because she had failed to present such background circumstances, her claim could not proceed.

The Court’s rejection of that reasoning was perhaps predictable. Indeed, the Court relied principally on Title VII’s text, which does not distinguish between majority and minority groups, and on two prior decisions, Griggs v. Duke Power Co.³ and McDonald v. Santa Fe Transportation Co.,⁴ that likewise rejected such a distinction. And the Court further explained that the doctrine flouted the Court’s prior teachings that because the “precise requirements of a prima facie case can vary depending on context,” the first step of McDonnell Douglas is not subject to rigid rules about the type of evidence required.  Predictable or not, however, the Court’s rejection of the background circumstances doctrine is significant. In the circuits that had accepted the doctrine, Title VII claims brought by non-minorities faced an additional hurdle that no longer exists.   

But perhaps even more significant is Justice Thomas’s separate concurrence, which was joined by Justice Gorsuch. Therein, those two justices express their agreement that the background circumstances doctrine is an “atextual legal rule” that should be discarded. But, they say, the entire McDonnell Douglas framework suffers from many of the same flaws. Thus, elaborating on a point they first expressed earlier this term (in Justice Thomas’s dissent from denial of certiorari in Hittle v. City of Stockton, No. 24-427), the two justices call for the entire McDonnell Douglas framework to be discarded, at least when it comes to the summary judgment stage of litigation.

The basis for that position is fourfold. The concurrence argues that the framework is incompatible with the summary judgment standard (because it requires a plaintiff to affirmatively prove their position, rather than merely create a genuine dispute of material fact); fails to capture all the ways in which a plaintiff can prove a Title VII claim (because it diverts the focus away from the ultimate question of whether intentional discrimination occurred); requires courts to draw and maintain an artificial distinction between direct and circumstantial evidence (because it does not apply in cases involving direct evidence); and has “befuddled” the lower courts for decades.

Justice Thomas’s concurrence may—and is certainly intended to—bring about a significant shift in the law governing employment discrimination cases by minorities and non-minorities alike. According to the Justice himself, McDonnell Douglas is the framework courts “typically apply” at summary judgment in such cases. Yet the concurrence not only calls for the Court to reject McDonnall Douglas’s applicability to summary judgment, but also points out that in the meantime, the “Court has never required anyone” to invoke or satisfy the framework at that stage, so “litigants and lower courts” are “free to proceed without [it].” If that advice is heeded, it will mark a major shift and leave employers facing significant uncertainty in employment litigation.

Special thanks to summer associate, Jiaying Peng for assisting in the preparation of this article.