As we anticipated and previewed in a previous advisory, on June 5, 2025, the U.S. Supreme Court issued a unanimous opinion in Ames v. Ohio Department of Youth Services, reshaping how courts handle Title VII claims from employees who are members of a majority group. The Court struck down the "background circumstances" test, which had previously imposed additional hurdles on plaintiffs who are white, male, heterosexual, or otherwise members of a majority group. In its place, the Court returned to a strict interpretation of the plain text of Title VII: the law prohibits workplace discrimination on the basis of race, gender and other protected categories against any individual, period.
What Happened in Ames?
Marlean Ames, a heterosexual woman, alleged she was
demoted and denied promotions in favor of LGBTQ employees. Lower
courts applied the Sixth Circuit's "background
circumstances" test, requiring her to prove that her employer
was the rare organization that discriminates against the majority.
The Supreme Court rejected this approach as incompatible with the
purpose of Title VII.
Key Holding
Justice Jackson, writing for the unanimous Court, made
clear: the heightened evidentiary standard applied to
majority-group plaintiffs "cannot be squared with the text of
Title VII or our longstanding precedents."
EEOC Response
EEOC Chair Andrea Lucas praised the ruling, calling it a
"restoration of the evenhanded application of Title VII."
She reiterated the agency's longstanding position that Title
VII is neutral and colorblind—and made clear the agency will
closely scrutinize DEI programs that veer into prohibited
territory.
Concurring Opinion: A Warning Shot at DEI
Justice Thomas, joined by Justice Gorsuch, used his
concurrence to criticize judge-made frameworks, such as
"background circumstances," and hinted that even the
McDonnell Douglas burden-shifting framework may face
future reconsideration. He specifically warned that DEI programs
granting preferences based on race, sex, or sexual orientation are
likely to draw increasing legal challenges.
Practical Takeaways for Employers
- Uniform Standard Applies: All Title VII plaintiffs, regardless of group status, face the same burden at step one of the McDonnell Douglas In other words, the "reverse discrimination" hurdle has been removed.
- DEI Programs Face Scrutiny: DEI initiatives tied to hiring, promotions, or training must be implemented neutrally. Good intentions won't save programs that use protected characteristics to favor one group over another.
- Increased Litigation Risk: Expect more claims from white, male, or heterosexual employees alleging DEI-based exclusion.
- Documentation Is Critical: Hiring and promotion decisions should be based on clear, objective criteria. Ensure your records back up those decisions.
- Train Managers: DEI should promote inclusion for all, not preferences for some. Managers must understand how to pursue diversity lawfully.
Next Steps
Audit DEI Programs: Review and, if
necessary, revise DEI initiatives to ensure neutrality in design
and application.
Update Policies: Refresh EEO and anti-discrimination policies to reflect this reaffirmed commitment to neutrality.
Prepare for Litigation: Be ready to defend your employment practices against claims from both minority and majority group employees.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
