The Post-Ames Effect

This past summer, the U.S. Supreme Court's unanimous decision in Ames v. Ohio Department of Youth Services removed the "background circumstances" hurdle that several circuits had imposed on majority-group plaintiffs bringing Title VII claims. By confirming that Title VII protects "any individual," and that all plaintiffs proceed under the same evidentiary framework, it is likely that the post-Ames landscape will be filled with more "reverse discrimination" cases. Against the backdrop of the Trump administration's enforcement posture, Executive Order 14173, U.S. Department of Justice (DOJ) guidance, and evolving EEOC priorities, all employers should anticipate stricter scrutiny of diversity, equity, and inclusion (DEI) initiatives and more challenges to policies, trainings and selection practices based on protected characteristics.

The Ames Decision

In Ames, Marlean Ames, a heterosexual woman working for the Ohio Department of Youth Services, was demoted from her role as a program administrator after being passed over for a management position in favor of a lesbian woman. Ms. Ames filed a lawsuit under Title VII, alleging discrimination based on her sexual orientation. The primary legal issue centered on whether the U.S. Court of Appeals for the Sixth Circuit's "background circumstances" rule, which required majority-group plaintiffs like Ms. Ames to meet a heightened evidentiary standard in Title VII claims, is consistent with Title VII's text. The U.S. Supreme Court held that Title VII does not authorize a heightened prima facie burden for majority group plaintiffs and rejected the "background circumstances" test used in several circuits, explaining that Title VII's text protects any individual and that any circuit's addition to the McDonnell Douglas framework should be avoided. In his concurrence, Justice Thomas questioned the continued viability of the McDonnell Douglas test, signaling even further potential changes. However, in the immediate term post-Ames, there will likely be more claims alleging discrimination against majority‑group employees.

What Changes Post-Ames

Ames leveled the evidentiary playing field and will likely bring an increase of claims by employees alleging adverse action because of race, sex, national origin, religion, or other protected traits, even where the challenged action was undertaken to advance DEI goals. In the future, employers should expect:

• An uptick in "reverse discrimination" claims, particularly where written policies, metrics, or training materials can be read to prefer individuals based on protected characteristics.
• A focus on selection and promotion processes. Even facially neutral criteria (e.g., lived experience, overcoming obstacles, diversity statements) may be challenged as unlawful proxies if selected or applied with a protected-class objective or effect.
• Expanded retaliation theories as employees object to, or refuse, participation in initiatives they perceive as discriminatory. Such objections may constitute protected activity under Title VII.

Courts have already begun citing Ames across jurisdictions, and several opinions have noted the concurrence's skepticism of the McDonnell Douglas test. However, with the core framework still in place, employers should anticipate closer judicial scrutiny as to whether proffered explanations for employment decisions are pretextual, and should ensure decision files are contemporaneously documented and anchored in job-related criteria.

Key Takeaways for Employers

Ames eliminates the "background circumstances" hurdle for majority group plaintiffs, creating a single national standard and increasing the likelihood that "reverse discrimination" suits will proceed past early stages.

In this environment, employers should anticipate heightened scrutiny of DEI-linked decision-making and should promptly audit any DEI policies, selection processes, and training content to identify and remediate disparate treatment risks.

Specifically, all employers should:

• Anchor employment decisions in specific, job-related qualifications, and document legitimate, nondiscriminatory rationales at the time of a decision.
• Review training curricula to avoid content that could support hostile work environment claims and focus on inclusion, professionalism, and equal opportunity without assigning benefits or burdens by protected status.
• Scrutinize facially neutral criteria for proxy effects and articulate race and sex neutral purposes to avoid demographic-driven outcome targets.
• Strengthen anti-retaliation protocols and internal reporting processes.
• Ensure that any objections to DEI initiatives is seen as protected activity.
• Investigate impartially.

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.