by Michael Barbella
In June 2025, the U.S. Supreme Court unanimously sided with an Ohio woman, sending her case back to a lower court and giving her another chance to prove she was a victim of reverse discrimination. The case is Ames v. Ohio Department of Youth Services.
Reverse discrimination refers to claims of discrimination, most often in areas of employment, made by a member of a majority or historically advantaged group, such as white males, against an employer or employee policy that favors a minority or historically disadvantaged group, such as members of the LGBTQ+ community.
The case
In 2019, Marlean Ames, a white, straight woman, sued the Ohio Department of Youth Services (ODYS) after being bypassed for a promotion, then demoted. She claimed both decisions were based on her sexual orientation, violating Title VII of the Civil Rights Act of 1964. It is important to note that Title VII protects all individuals, including those in majority groups, from unfair treatment.
Ames began working for ODYS in 2004 as an executive secretary. After a decade with the organization, she was appointed as a program administrator. A 2018 performance review, submitted as evidence in the case, revealed that Ames met expectations in 10 categories and exceeded them in another.
In April 2019, Ames and two other candidates applied for a new post—the department’s Bureau Chief of Quality. She interviewed with her supervisor, a gay woman, and that supervisor’s boss, a straight woman. According to both of their depositions in the case, the managers told Ames she lacked the “vision” and the leadership skills necessary for the new job. Soon after the interview for the promotion, the department fired Ames from her administrator position and offered to reinstate her in her prior role. The demotion came with a 40% pay cut.
Ames accepted the demotion. Shortly after, according to the opinion of the Sixth Circuit U.S. Court of Appeals, ODYS hired a 25-year-old gay man to replace Ames in her previous position. Then, in December 2019, ODYS hired a gay woman to be its Bureau Chief of Quality—the promotion Ames sought.
Higher standard for majority groups?
While Title VII does not differentiate between discrimination against a minority or majority group, some courts have required majority group accusers to prove their employers have historically discriminated against the larger majority. Such a stipulation, commonly referred to as “background circumstances,” sets a higher standard for majority group members trying to prove discrimination. Ames was held to this higher standard.
In its 1973 ruling in McDonnell Douglas Corp. v. Green, the U.S. Supreme Court established a three-step framework to help decide employment discrimination cases. The framework, which shifts the burden of proof from the plaintiff to the employer to the plaintiff again, would come to be known as the McDonnell Douglas framework.
The first step in the framework requires the plaintiff to establish a “prima facie” case. Prima facie is a low-threshold requirement to establish the basic elements of a claim. For example, to establish a prima facie case in an employment dispute, the plaintiff would need to show they are qualified for a job, suffered an adverse action, and that similarly situated employees were treated more favorably. If the plaintiff establishes a prima facie case, the burden shifts to the employer to provide a legitimate, non-discriminatory reason for their action. If the employer provides this reason, then the burden again shifts to the plaintiff who would now need to prove that the employer’s reason is just an excuse and not the real reason for the discrimination.
“In ‘reverse discrimination’ cases with white, male, or other majority plaintiffs, some jurisdictions had modified the first part of this burden-shifting test under McDonnell Douglas to require additional proof that the employer is the ‘unusual employer that discriminates against the majority,’” explains Stacy Hawkins, a professor at Rutgers Law School in Camden who has worked as a labor and employment attorney. “Only some, not all, jurisdictions required this additional proof, creating a circuit split ripe for the U.S. Supreme Court to resolve.”
Splitting the circuit
A circuit split refers to a situation where two or more U.S. Courts of Appeals (also known as circuit courts) reach different decisions on the same legal issue, resulting in federal law being applied inconsistently across different regions of the country. That means that similarly situated litigants may receive different outcomes depending on their jurisdiction. The existence of a circuit split is a factor that the U.S. Supreme Court takes into consideration when deciding whether to hear certain cases.
The circuit split in the Ames case concerned the “background circumstances” requirement. The Sixth, Seventh, Eighth, Tenth, and D.C. Circuits apply the background circumstances requirement in reverse discrimination cases. The First, Second, Fourth Fifth and Ninth circuits don’t apply the requirement in those types of cases, while the Third (this is the circuit that applies to New Jersey) and Eleventh circuits have expressly rejected it.
The U.S. District Court for the Southern District of Ohio and the U.S. Court of Appeals for the Sixth Circuit required Ames to provide additional proof of ODYS discriminating against majority groups, and found none, thus rejecting her lawsuit. The district court concluded that Ames could not produce statistical evidence showing the department historically considered sexual orientation in its employment decisions. The lower courts also pointed to a performance evaluation done a month before her demotion, which was entered into evidence. In the review, Ames scored “opportunity to improve” in three categories.
The decision
With both lower courts rejecting her claim, Ames appealed to the U.S. Supreme Court. In October 2024, the Court agreed to review the case and heard oral arguments in February 2025. The Court was asked to decide whether a plaintiff who belongs to a majority group needs to demonstrate “background circumstances” in order to establish a prima facie case of discrimination under Title VII of the Civil Rights Act of 1964.
During oral arguments, Professor Xiao Wang, director of the Supreme Court Litigation Clinic at the University of Virginia School of Law who represented Ames, told the Court, “What this case is all about are the four words on the side of this building—equal justice under law. I know that sometimes we don’t fulfill that promise. But at the heart of this case, all Ms. Ames is asking for is equal justice under law. Not more justice, but certainly not less, and certainly not less because of the color of her skin or because of her sex or because of her religion.”
In June 2025, the U.S. Supreme Court issued its unanimous opinion in Ames v. Ohio Department of Youth Services, rejecting the “background circumstances” requirement for Title VII discrimination claims brought by majority-group plaintiffs.
Justice Ketanji Brown Jackson wrote the Court’s opinion and noted that discrimination against any individual—regardless of their status or group membership—is unlawful under Title VII.
“By establishing the same protections for every ‘individual’—without regard to that individual’s membership in a minority or majority group—Congress left no room for courts to impose special requirements on the majority-group plaintiffs.”
Referring to the McDonnell Douglas framework, Justice Jackson said the first step (of three) in proving workplace discrimination is providing enough proof to infer an employer intended to discriminate. She noted that this step is not a high bar.
“A plaintiff may satisfy it simply by presenting evidence that she applied for an available position for which she was qualified, but was rejected under circumstances which give rise to an inference of unlawful discrimination,” Justice Jackson wrote, and added that the court of appeals incorrectly added an additional requirement directing Ames to “establish ‘background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.’”
In other words, using the “background circumstances” requirement makes the assumption that discrimination against a majority group is “unusual,” therefore the group is being subjected to a higher standard in order to overcome that presumption.
In a concurring opinion, Justices Clarence Thomas and Neil Gorsuch took issue with the three-step test in the McDonnell Douglas framework, saying the test “lacks any basis in federal employment discrimination law” and has been difficult for courts to apply.
With the Court’s ruling, Ames’ case is remanded to the lower court where the proper standard will be applied. Critics of the Court’s ruling say that it will cause a flood of reverse discrimination cases. In fact, Justice Amy Coney Barrett addressed this during oral arguments asking Professor Wang, who represented Ames, “What do you have to say to the…contention that this is just going to throw the door wide open to Title VII suits because now everybody can say, hey, this was discrimination on the basis of race, gender, et cetera?”
In reply, Professor Wang pointed out that more than half of the circuit courts don’t apply the background circumstances rule, saying, “We don’t see those circuits having some sort of flood of litigation.”
Professor Hawkins says the Court’s ruling could help discrimination claims survive initial stages of a court standoff, but they are not more likely to succeed overall.
“Going forward, Ames obviously eliminates the additional burden for reverse discrimination plaintiffs at the first stage of the McDonnell Douglas test,” she says. “However, neither the prior standard nor the decision in Ames alters the burden at the second and third stages of the McDonnell Douglas test. These cases are now more likely to survive motions to dismiss, but they are no more likely to succeed overall since the ultimate burden of proof at the third stage remains unchanged.”
Discussion Questions
- What do you think of the Court’s decision in Ames v. Ohio Department of Youth Services? Should someone from a majority group face more scrutiny when bringing a claim of employment discrimination? Why or why not?
- What do you think of the concept of a “circuit split?” Why would having a circuit split be a problem in this case or any case? Explain your answer.
Glossary Words
affirm—to uphold, approve or confirm.
appeal—a request that a higher court review the decision of a lower court.
burden of proof—the obligation to prove by evidence in a case that your argument is truthful.
concurring opinion—a separate opinion delivered by one or more justices or judges that agrees with the decision of the court but not for the same reasons.
deposition—a formal, pre-trial procedure where a witness provides sworn oral testimony that is recorded for court records.
jurisdiction—authority to interpret or apply the law.
litigant—a person involved in a lawsuit.
motion to dismiss—an application made to a court to discharge a lawsuit without further consideration such as a trial.
plaintiff—person or persons bringing a civil lawsuit against another person or entity.
prima facie—presumed to be a fact unless disproved with evidence to the contrary.
remand—to send a case back to a lower court.
This article originally appeared in the fall 2025 issue of Respect, NJSBF’s diversity and inclusion newsletter.