In a case coming before the U.S. Supreme Court, the question before the court is “what do white people and other members of a majority group have to prove to win a claim for reverse discrimination?” It’s an interesting proposition because many federal courts require an additional step for a majority group to demonstrate discrimination.

In the case of Ames v. Ohio Department of Youth Services, No. 23-3341(6^th Circuit Court of Appeals, 12/4/23), Marlean Ames alleged that the Ohio Department of Youth Services discriminated against her on the basis of sexual orientation and sex under Title VII of the Civil Rights Act of 1964. Ames, a heterosexual woman, was an employee of the Department and was demoted from her position as Administrator of the Prison Rape Elimination Act and denied a promotion to Bureau Chief of Quality. She was replaced in her role by a gay man, and the Bureau Chief position was filled by a gay woman. 

In order to prove a majority group discrimination in the 6^th Circuit, which includes Michigan, not only did Ames have to prove the McDonnell-Douglas requirements but also an additional factor showing “background circumstances support the suspicion that the defendant is that unusual employer who discriminates against the majority.” This approach arose from a 1981 case from the D.C. Circuit Court of Appeals.  The McDonnell-Douglas requirements are (1) they belong to a protected class; (2) they applied for and were qualified for an available position; (3) their employer rejected their application for the position; and (4) their employer kept the position open and continued to seek applicants with the same qualifications as the plaintiff. 

In this case, the 6^th Circuit ruled that Ames failed to show background circumstances that would justify the Department to have a bias against the majority, in this situation, a white heterosexual woman. Ames claimed she was not selected for a promotion in favor of a gay man and then was terminated so she could be replaced by a gay woman.  However, Ames showed that her supervisor was a gay woman but two of the more senior hiring decisionmakers were both heterosexuals.  She didn’t show any proclivity or bias against heterosexual white women.  Thus, she failed to prove background circumstances that would support her case.

There is a split between circuits on this issue.  The D.C. Circuit, Sixth Circuit, Seventh Circuit, Eighth Circuit, and Tenth Circuit apply the heightened requirement. The Third Circuit and Eleventh Circuit have rejected the rule, and the remainder have not yet applied the rule.  As a result, the Supreme Court selected the case for hearing. If the Court rejects the "background circumstances" rule, it will be easier for a plaintiff to bring and prove a claim of reverse discrimination.

This case falls under the DEI mantra as well, as the majority are considered to require extra burden to prove their case.  Although illegal DEI is not well defined beyond quotas (think Harvard or Wells Fargo situations) or training that states the majority are “racists,” it will likely be a case that establishes that all will be treated equally under the law. 

More recently, in a similar vein, the EEOC had a lawsuit that survived a motion to dismiss in a lawsuit in North Carolina that alleged that Kickback Jack's sports bar systematically refused to hire men for front-of-house jobs and prioritized hiring women to server, bartender, and host positions while excluding male applicants.

It is likely with this court that the extra burden for the majority will be considered illegal.

How does this line of cases impact employers? “If the Supreme Court makes it easier to win reverse-discrimination cases, it will supercharge the number of claims around DEI and workplace bias against majority groups,” said Lauren Hartz, a partner with the firm Jenner & Block. An amicus brief for Ames by the America First Legal Foundation stated that “it is no longer reasonable to assume that employers favor people who are white, straight, or otherwise part of majority groups. Such presumptions are “highly suspect in this age of hiring based on “DEI programs.”   If Ames wins, DEI audits will be a necessary feature of any compliance program. 

Source: The Wall Street Journal 2/26/25, Law360 2/24/25, Lowenstein Sandler 2/20/25