Those corporate officers who may seek in future to institute discriminatory employment practices should be on notice that these programs are still not protected by law.
The Supreme Court’s most recent term may be proof positive of the Judiciary’s hostility towards providing deferential treatment to protected classes for the purpose of discrimination suits. On June 5, 2025, the Supreme Court released a unanimous opinion in Ames v. Ohio Dep’t of Youth Servs., reaffirming the Court’s position that there can be no distinction between “majority” or “minority” groups for the purpose of applying tests for discrimination under Title VII of the Civil Rights Act. For the purposes of background, Title VII of the Civil Rights Act (codified at 42 U.S.C. § 2000e-2) provides federal protection from employment discrimination on the basis of protected classes, specifically race, color, religion, sex, or national origin, and grants a federal cause of action if an employer violates Title VII.
Within the case itself, the petitioner, Marlean Ames, alleged at trial court that she was discriminated against by her employer when she was passed over for a promotion to a management position in a newly established office in the Ohio Department of Youth Services, and in her subsequent demotion within the agency. Ames’ rationale supporting her case that she was discriminated against was that both the selected candidate who filled the management position she was passed over for and her replacement in her old role were homosexual and she is heterosexual.
When a plaintiff alleges discrimination in an employment action, courts normally apply the tripartite McDonnell Douglas framework, asking first if the plaintiff has shown a prima facie case of discrimination (meaning that the facts as presented by the plaintiff prior to rebuttal from an opposing party gives rise to an inference that the plaintiff was discriminated against by their employer). Once the plaintiff is found to have made this prima facie case, it is then incumbent on the employer to show that they have a non-discriminatory rationale for the employment action (perhaps by showing that the selected candidate was more qualified than the plaintiff or that the plaintiff was fired for poor performance, etc.). If the employer makes this showing, the burden then shifts once more to the plaintiff to show that the rationale(s) provided by the employer is pretextual for actual discrimination. This tripartite test has been used by courts across jurisdictions since 1973, with very little in the way of modification.
However, in Ames, the trial court declined to apply McDonnell Douglas as commonly understood, stating instead that because Ames had failed to present “background circumstances” evidence indicating that her employer was one that discriminates against “majorities”, she had failed to establish a prima facie case, and the court threw her case out on summary judgment. On appeal, the Sixth Circuit Court of Appeals affirmed the trial court’s use of the background circumstances evidentiary hurdle. The Sixth Circuit relies on a decades-old adoption of a rationale in early 1980’s case law where courts were scrambling to determine how best to apply McDonnell Douglas, and this precedent is likely resultant of that doctrinal uncertainty.
The Supreme Court unanimously decided to reject the Sixth Circuit’s “background circumstances” test and reinstate Ames’ case, finding that there can be no legally permissible additional evidentiary burden for plaintiffs alleging discrimination based on a protected class under McDonnell Douglas, even if the plaintiff is a member of a “majority” protected class.
But the Court went further than just defending McDonnell Douglas and its associated precedents. Justice Jackson, writing for the entire bench, reaffirmed the Court’s long precedent that: “As a textual matter, Title VII’s disparate-treatment provision draws no distinction between majority-group plaintiffs and minority group plaintiffs.”; in short, the protections of Title VII apply to everyone equally, no matter your race, color, sex, religion, or national origin.
While this case does not mean that Ames will necessarily be successful in her claims once she heads back to the trial court (trust me, as a former employment lawyer, these kinds of cases are hard to win on the merits), the legacy of this case will surely be the Court’s repudiation of the concept that “reverse discrimination” is somehow a distinct category from discrimination of the traditional sort. In doing so, the Court has upheld the United States’ laudable legal heritage in striving to protect people from legal injustice due to prejudice.
This case should also signal a warning to those entities that wish to continue to discriminate by enshrining different standards for majorities as opposed to minorities in practice. Do not be fooled, those bodies do exist. Even within the context of Ames itself, the Sixth Circuit was not alone in its attempt to add an additional legal hurdle for “majorities” to discrimination cases. Justice Jackson helpfully identified four other Federal Circuits (the Seventh Circuit, Eighth Circuit, Tenth Circuit, and Court of Appeals for the District of Columbia, for those curious) who had previously applied tests similar to the one at issue in Ames and upheld their use.
Moving away from the legal to the world of the corporate, many corporations in recent years had previously committed to preferential employment treatment for persons of minority status, a trend that FEP has had a role in repudiating. While these companies have since disavowed strict quotas for the purposes of affirmative action employment decisions (the Supreme Court had deemed the use of racial quota unconstitutional since 1978) and many companies, like Target, have reinstituted a neutral position for employment decisions in accordance with federal law, one must imagine that the impulse to institute some form of express preferential treatment for specific groups of people will resurge at some point, be it through malice or misplaced altruism.
Those corporate officers who may seek in future to institute discriminatory employment practices should be on notice that these programs are still not protected by law, and continued reliance on them has already and will continue to expose them and their shareholders to needless and harmful litigation risks.
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