Supreme Court Rejects Double Standard on Discrimination Claims by Members of Majority Groups

Fort Lauderdale, Fla. (June 6, 2025) - Most people know intuitively what the concept of “discrimination” is. In the landmark sex discrimination case of Bostock v. Clayton County, 590 U.S. 644 (2020), discrimination was defined as “to make a difference in treatment or favor (of one as compared with others).” In plain terms, treating similar cases the same is not discrimination, and neither is treating different cases differently. Treating similar cases differently, however, is discrimination.

Despite this common sense principle, some federal circuits have treated certain discrimination claims differently (and less favorably) than other circuits have. Courts in those circuits have imposed a double standard on discrimination claims, raising the bar to prove discrimination based solely on whether the plaintiff’s race, color, religion, sex, or national origin is in the societal majority. On June 5, 2025, in Ames v. Ohio Dept of Youth Servs. (available here), the Supreme Court ended that practice and removed the judicially-imposed double standard on discrimination claims brought by members of a majority group.

Title VII disparate treatment claims

Congress enacted Title VII of the Civil Rights Act of 1964 to assure equality of employment opportunities and eliminate discriminatory practices. It charged employers with removing artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification. To that end, Title VII’s disparate-treatment provision bars employers from intentionally discriminating against their employees on the basis of race, color, religion, sex, or national origin.

A plaintiff claiming disparate treatment is required to show that someone who does not share one or more of their protected characteristics was treated more favorably than they were. For cases involving a failure to hire or promote, the plaintiff must generally show they applied for a position and were rejected in a manner that  allows for an inference of discrimination.

Prior to the Ames decision, the Sixth, Seventh, Eighth, Tenth, and D.C. Circuits imposed a different standard when members of a majority group, such as heterosexuals or Caucasians, claimed Title VII discrimination. In those circuits, a plaintiff who pursued a so-called “reverse discrimination” claim was required to establish “background circumstances” that would plausibly support an inference that the defendant is one of those “unusual employers” who discriminates against the majority. Importantly, a minority-group plaintiff pursuing a discrimination case did not need to establish any background circumstances at all, only that their protected characteristic was more likely than not to be the reason for the challenged action.

The Ames Case  

In Ames, the Ohio Department of Youth Services hired Marlean Ames, a heterosexual woman, as an executive secretary in 2004. She worked in the Department for over a decade and was promoted to be a program administrator. In 2019, the Department created a new management-level position for which Ames appeared to be qualified. She was interviewed, but the position ultimately went to another candidate, a LGTBQ woman. Because employers must be allowed to make judgment calls as to who is the best candidate, by itself, that decision does not raise any concerns. However, immediately following her failed candidacy, Ames was removed from her then-current role as program administrator and demoted back to her original executive secretary role—with severely reduced pay—and her program administrator role was filled by a LGTBQ man.

Ames sued the Department alleging discrimination based on her sex, specifically her sexual orientation. The trial court dismissed her claim, holding that Ames had failed to meet the “background circumstances” requirement for her discrimination claims based on her heterosexuality. On appeal, the Sixth Circuit agreed, holding that majority-group plaintiffs are subject to a different evidentiary burden than minority-group plaintiffs.

The Supreme Court disagreed. Writing for a unanimous court, Justice Ketanji Brown Jackson stated Title VII does not vary based on whether or not the plaintiff is a member of a majority group. Indeed, “Title VII works to protect individuals of both sexes from discrimination, and does so equally.” Notably, the State of Ohio had agreed at oral argument it was wrong “to hold some litigants to a higher standard because of their protected characteristics,” completely undercutting any rationale for keeping the background circumstances test.

The Ames opinion reinforces Congress’s mandate that Title VII remove any discriminatory preference for any group, whether minority or majority. But Ames must still prove her case on remand, based on the same framework and burden as any other plaintiff.

Practical considerations for employers

To the extent any employers, particularly in the Sixth, Seventh, Eighth, Tenth, and D.C. Circuits, which encompass Colorado, Illinois, Michigan, Minnesota, Ohio, and Washington, D.C., among other jurisdictions, consciously believed they could permissibly treat majority-group individuals less favorably without running afoul of the discrimination laws, they are now on notice that they cannot permissibly do so. It remains to be seen whether the Ames decision emboldens majority-group plaintiffs to bring more discrimination claims based on perceived favoritism to minority-group employees or applicants.

Although the volume of lawsuits may increase, the ways in which employers can protect themselves remains evergreen. First, employers must review existing anti-discrimination policies to ensure that those policies clearly prohibit any workplace discrimination based any protected characteristics and update them, if necessary. Second, as always, employers must vigorously enforce their policies and ensure that there is no retaliation against persons who complain. Lewis Brisbois’ employment attorneys remain available for assistance with advice and policy drafting for employers.

For more information on these developments, contact the author of this alert. Visit our Labor & Employment Practice page for additional alerts in this area.

Author:

Alex B.C. Ershock, Partner