On June 5, 2025, the U.S. Supreme Court unanimously ruled in Ames v Ohio Dept. of Youth Services that plaintiffs in the majority group within a protected class have the same burden of proof at summary judgment to demonstrate discrimination under Title VII of the Civil Rights Act of 1964 as plaintiffs in the minority group. The Court held that requiring a heterosexual person to show additional "background circumstances to support the suspicion" that she was the subject of discrimination – the standard that the Sixth Circuit had applied – was inconsistent with Title VII as that statute does not impose a heightened standard on majority group plaintiffs.
Under the burden-shifting evidentiary frameworkset forth in McDonnell Douglas Corp. v Green, 411 U.S. 792 (1973), when a plaintiff alleges intentional employment discrimination supported by only circumstantial (as opposed to direct) evidence, on summary judgment that plaintiff must first prove a prima facie case of discrimination by a preponderance of the evidence. Then, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the alleged discriminatory act. If the employer can make this showing, the burden shifts back to the plaintiff to show that the proffered reason was a pretext for discrimination. Before Ames, the Sixth, Seventh, Eighth, Tenth and D.C. Circuits required "majority-group plaintiffs" – typically, in most workplaces, groups such as White, male, or heterosexual employees – to show in addition to evidence supporting an inference of discriminatory motive "background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority." The Court held that nowhere in the text of Title VII does it require additional proof from majority group plaintiffs in the way of "background circumstances," nor does the Court's case law support such a requirement. The Court vacated and remanded the case for the district court to apply the proper prima facie standard on summary judgment.
The Ames decision also serves as a refresher on the application of the McDonnell Douglas framework itself. The first step of the framework requires plaintiffs to make a prima facie showing of discrimination, but itis not applicable on a motion to dismiss. Instead, at the pleading stage, a plaintiff need only "give defendant fair notice of what the plaintiff's claim is and the grounds on which it rests." Swierkiewicz v Sorema N.A., 534 U.S. 506, 512 (2002). Even when McDonnell Douglas applies, theCourt reinforces in Ames that the prima facie prong of the framework and its requirements "can vary depending on the context and were 'never intended to be rigid, mechanized, or ritualistic.'" Therefore, while Ames keeps the McDonnell Douglas framework intact, the Court reiteratesthat itis simply an "orderly way to evaluate the evidence" on summary judgment.
Justice Clarence Thomas, writing a concurring opinion in which he was joined by Justice Neil Gorsuch, expressed the view that McDonnell Douglas may not be the appropriate way to evaluate the evidence of a Title VII claim on summary judgment. This concurrence was the second time this year (see also Hittle v City of Stockton, 604 U.S. ___ (2025) (Thomas, J., dissenting)) Justice Thomas has called the McDonnell Douglas framework into question. He reasons that McDonnell Douglas requires plaintiffs to prove a prima facie case of discrimination by a preponderance of the evidence, which is a higher burden than Rule 56's requirement that the plaintiff show only a genuine dispute over a material fact to survive dismissal. The Ames Court noted in its majority opinion that it was assuming, without deciding, that McDonnell Douglas applies at the summary judgment stage, serving as a reminder that the Supreme Court has never actually opined on whether it applies. If faced with that issue, Justices Thomas and Gorsuch would very likely answer in the negative.
Theoutcome in Ames echoes the Court's decision two years ago in Students for Fair Admissions, Inc. v President and Fellows of Harvard College (SFFA) and the subject of a prior alert, which held that undergraduate affirmative action practices that afford preferences in college admissions decisions to certain racial minorities violate the Constitution and Title VI of the Civil Rights Act of 1964. Even though the SFFA decision did not apply Title VII or address the employment context, it caused many employers to conclude that the Court would likely consider an employment program or practice that takes gender or race into account to violate Title VII – a conclusion that Ames confirms is very likely correct.
Following Ames, employers should ensure that their policies, practices and programs are neutral as applied to all protected classes of employees. It is not permissible, as a unanimous Court makes clear in Ames, for employers to put the thumb on the scale in favor of groups of employees based on protected characteristics absent express statutory permission.
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