U.S. Supreme Court Opens the Door for Reverse Discrimination Claims

When I think of employment discrimination, I generally think of someone in a traditional majority group (e.g., white or male) firing someone in a minority group (e.g., African American or female) because of sex or race. But the law that prohibits race and sex discrimination, Title VII, does not say anything about who is in the majority and who is in the minority. It simply prohibits discriminating against an employee based on race, color, religion, sex, or natural origin.

Since Title VII’s passage in 1964, plaintiffs in the traditional majority categories have been bringing so-called “reverse discrimination” claims. But many courts did not believe that Congress intended for Title VII to provide the same protection for majority employees as it does for minority employees. Some courts require an employee in the traditional majority to prove something more to state a reverse discrimination claim. The Sixth Circuit Court of Appeals required a plaintiff to also show “background circumstances” to establish that the employer was the rare employer that discriminates against members of a majority group. In other words, white or male employees were subject to a heightened evidentiary standard to make a claim. The effect of this was that it was much harder for majority employees to bring discrimination claims.

On June 5, 2025, the United States Supreme Court overturned the background circumstances test. In Ames v. Ohio Dep’t of Youth Services, the plaintiff applied for a position with her employer. She did not get the job, which was given to another employee who was a lesbian. Shortly thereafter, she was demoted, and her former position was given to a gay male. She filed a reverse discrimination claim, alleging that she was denied promotion and then demoted because of her sexual orientation. The district court dismissed her claim because she could not establish background circumstances that suggested that her employer discriminated against the majority, such as statistical proof or evidence that the decision maker was in the favored minority group, and the Sixth Circuit upheld the district court’s decision.

The Supreme Court reversed and found that the language of Title VII makes no distinction between majority-group plaintiffs and minority-group plaintiffs and therefore, the courts cannot do so either. The plain language of the statute did not support the courts’ decision to place an extra burden on some plaintiffs and not on others.

Takeaways

This case is significant for employers for several reasons. First, it will no doubt increase the number of claims filed by majority-group employees. Reverse discrimination claims (although that term will likely fall out of favor) have been on the rise and this decision will very likely continue and intensify that trend.

Second, this case will also further enhance the risk on employers under their DEI programs. As I mentioned in the last article I wrote on “The Future of DEI Under Trump’s Second Administration,” using race or sex or any other protected characteristic as a basis for an employment decision has not ever been expressly allowed under the law. In 2023, the Supreme Court prohibited the use of race as a factor in college admissions and made clear that the same analysis would likely apply in the employment setting.

The background circumstances test gave employers some protection from reverse discrimination claims because it imposed an additional evidentiary burden on plaintiffs. That protection is now gone.

Next Steps for Employers

This case continues the recent and significant changes to the employment law landscape as we know it. Along with Supreme Court’s 2024 elimination of a showing of “significant harm” to prove an adverse employment action and the Trump administration’s and EEOC’s current focus on “unlawful DEI,” the prohibition on arbitration agreements and NDAs in harassment cases, new accommodation requirements for pregnant employees, etc., employers may feel like the sand is shifting under their feet and that many of the rules that we could rely upon no longer apply at all.  

So, what can you do?

• Decision makers must be trained to understand that majority group status is no longer going to be a difference maker in trying to justify an employment decision.
  
  
• Employers must use the same criteria in evaluating risk for employment decisions for majority group employees: Documentation, objectivity of the reasons involved, notice to the employee, treatment of comparators, etc.
  
  
• Employers must be careful to ensure that their DEI departments are not influencing employment decisions. While trying to remove barriers or trying to remedy an established deficiency in applicants may be permissible, using race or sex or other protected characteristics as a tiebreaker or as a reason for providing benefits to a certain class of employees is illegal and now, even for majority group employees, proving such a claim is going to be easier.

About Our Author

Brent Siler is a member of the Adams & Reese Litigation Practice Group and Labor and Employment Team. He is a Partner in the Memphis office and has more than 20 years practicing at top AmLaw 200 firms across the southeastern United States. Brent drafts employment, contractor, and vendor agreements, as well as non-competition, non-solicitation, non-disclosure, confidentiality, and other agreements, policies, handbooks, and training materials. He is asked by clients, peers, business groups, and bar associations to provide training on employment-related laws and is also a frequent speaker, presenter, and author on labor and employment issues. He defends employers in discrimination, harassment, retaliation, OSHA, non-compete, and employee benefits disputes, as well as whistleblower, wage and hour, ERISA, defamation, workers’ compensation, and other employment-related litigation. He is licensed in Tennessee, Mississippi, and Arkansas. He is a Tennessee Supreme Court Rule 31 listed General Civil Mediator, mediating employment and commercial litigation.