One Year After Ames: How Title VII Reverse Discrimination Claims Are Evolving

In June 2025, the U.S. Supreme Court unanimously eliminated the “background circumstances” rule that imposed a higher evidentiary burden on majority-group plaintiffs in Title VII cases in Ames v. Ohio Department of Youth Services. Majority-group plaintiffs include employees who allege discrimination despite belonging to a group that historically has not been viewed as a typical victim of discrimination under Title VII. The court held that all plaintiffs—regardless of race, sex, or sexual orientation—are entitled to equal protection whether they are in a majority or minority group.

Read more details about the decision in our previous article, “Supreme Court Reaffirms Equal Access to Title VII Protections.”

At the time, employers wondered whether the decision would unleash a wave of so-called “reverse discrimination” lawsuits, while others wondered whether workplace diversity, equity, and inclusion (DEI) initiatives would face increased legal scrutiny.

One year later, the picture is becoming clearer.

What Ames Changed

Before Ames, employers litigating discrimination claims (in jurisdictions recognizing the background-circumstances rule) often argued that majority-group plaintiffs could not make an initial evidentiary showing required to indicate discrimination because they lacked evidence that the employer was inclined to discriminate against majority-group employees. These claims often involved White employees alleging race discrimination, male employees alleging sex discrimination, or heterosexual employees alleging discrimination based on sexual orientation.

The Supreme Court unanimously rejected that approach when it decided Ames. Writing for the Court, Justice Ketanji Brown Jackson explained that Title VII protects “any individual” from discrimination because of a protected characteristic. Nothing in the statute authorizes courts to impose a heightened burden based upon whether the plaintiff belongs to a majority or minority group.

However, Ames did not create a new cause of action or lower the ultimate burden of proof. Plaintiffs still must establish that an adverse employment action occurred because of a protected characteristic, and employers remain free to articulate legitimate, nondiscriminatory reasons for their employment decisions.

In other words, Ames changed the starting point of the analysis, not the ultimate question of discrimination.

The Overlooked Story: Justice Thomas’s Concurrence on McDonnell Douglas

While the unanimous opinion attracted most of the attention, Justice Thomas’s concurrence may prove to be the more consequential aspect of Ames over the long term.

For more than fifty years, the McDonnell Douglas framework has governed most Title VII cases relying on circumstantial evidence. That framework generally proceeds in this way:

1. Plaintiffs establish a prima facie case, meaning they present enough initial evidence to support a claim of discrimination.
2. Employers articulate a legitimate, nondiscriminatory reason for the challenged action, thereby rebutting the inference of discrimination created by the Plaintiff’s initial showing of evidence.
3. Plaintiffs bear the burden of demonstrating the employer’s stated reason is a false explanation to hide the employer’s wrongful actions.

In his concurrence for Ames, Justice Thomas questioned whether the McDonnell Douglas framework drifted too far from Title VII’s text. In Justice Thomas’s view, the framework was originally developed to organize evidence in a bench trial. But, in practice, is too often used as a substantive test at summary judgment, diverting courts from deciding to move forward based on whether the evidence would permit a reasonable jury to find discrimination.

Although the concurrence did not alter existing law, it poses an important question: if the Supreme Court unanimously rejected a judicially created evidentiary rule in Ames because it lacked a statutory foundation, might other judicially created evidentiary doctrines (such as McDonnell Douglas) eventually face similar scrutiny?

The Aftermath: Responses from the Lower Courts

Lower courts have chimed in on Justice Thomas’s concurrence, but they have not responded uniformly.

In Hollis v. Morgan State University, the Fourth Circuit reversed summary judgment in part after concluding the district court improperly excluded alleged discriminatory statements from its analysis once it determined that they did not constitute “direct” evidence. Citing Justice Thomas’s Ames concurrence, the court explained that even statements that do not prove intentional discrimination by themselves may remain relevant circumstantial evidence and must be considered along with the rest of the evidence.

The Seventh Circuit echoed this approach in Pratt v. Wisconsin Aluminum Foundry. Although the plaintiff organized her sex-discrimination claim under McDonnell Douglas, the court explained that neither plaintiffs nor courts are required to use that framework. Again citing Justice Thomas’ Ames concurrence, the court examined the evidence holistically and asked whether workplace culture, comparator evidence, inconsistent explanations, and other circumstances would permit a reasonable jury to infer discrimination.

Neither Hollis nor Pratt invalidates McDonnell Douglas. Instead, the decisions suggest that Thomas’s concurrence may be influencing how courts describe the role of McDonnell Douglas: not as the way to determine discrimination, but as an optional method of organizing evidence that cannot replace the ordinary summary-judgment standard.

On the other hand, some courts have taken a more restrained view of Ames, treating it as limited to the elimination of the specific background-circumstances rule used in that jurisdiction and similar rules that place “a greater evidentiary burden on some groups.” In Bravo v. Dallas Independent School District, for example, the Fifth Circuit rejected the plaintiff’s argument that Ames implicitly overruled the circuit’s longstanding requirements under McDonnell Douglas. While recognizing Ames’s warning against rigid legal tests to establish discrimination, the court concluded its own tests were sufficiently flexible to survive Ames and continued to require comparator evidence as part of the plaintiff’s case.

Implications for Employers

Regardless of whether future courts revisit McDonnell Douglas, the practical guidance for employers remains remarkably consistent: employment decisions should be based on legitimate, documented business reasons rather than protected characteristics.

Since Ames, the EEOC has adopted a new National Enforcement Plan (NEP) for Fiscal Years 2025–2029, replacing its prior Strategic Enforcement Plan. The new NEP reaffirms the commission’s commitment to “merit-based, evenhanded enforcement” of the federal employment discrimination laws and emphasizes prevention, voluntary resolution, and enforcement as the agency’s core objectives.

While Ames addressed the evidentiary standard applicable in Title VII litigation, the NEP illustrates how the federal enforcement landscape has continued to evolve. Among other priorities, the EEOC indicated it will closely scrutinize intentional discrimination claims and employment practices that make decisions based on protected characteristics, regardless of whether the affected employee belongs to a majority or minority group.

Against that backdrop, employers should continue to:

• Document hiring, promotion, discipline, and termination decisions consistently
• Apply objective, job-related selection criteria uniformly
• Train supervisors to make employment decisions without regard to protected characteristics
• Periodically review hiring, promotion, mentoring, internship, and other workplace initiatives to ensure compliance with Title VII
• Monitor developments in both the courts and EEOC enforcement priorities, as reverse-discrimination jurisprudence continues to evolve

These recommendations are not new. Rather, they reflect the common principle underlying both Ames and the EEOC’s current enforcement priorities: employment decisions should be based on legitimate business considerations, not protected characteristics.

Looking Ahead

One year after Ames, the anticipated flood of reverse-discrimination litigation has yet to materialize in any measurable way. At the same time, Ames, together with the decisions that have followed, suggests an increasing willingness to examine whether longstanding judicial doctrines are faithful to the text of Title VII. For employers, that means the procedural rules governing discrimination claims may continue to evolve, even as the underlying principle remains unchanged.

If you have questions about how Ames or other Title VII developments may affect your workplace policies, employment practices, or litigation strategy, please contact the authors of this article or a member of the Woods Rogers Labor & Employment team.

Frequently Asked Questions

Q: Did Ames create a new reverse-discrimination claim?

A: No. Ames eliminated a heightened evidentiary requirement used in some jurisdictions for majority-group plaintiffs but did not create a new cause of action or change the ultimate burden of proof.

Q: Does Ames affect employer DEI initiatives?

A: The decision reinforces that Title VII applies equally to all employees and may increase scrutiny of decisions based on protected characteristics.

Q: Is the McDonnell Douglas framework still valid?

A: Yes. The Supreme Court has not overruled it, and lower courts continue to apply it, although some judges have questioned its future role.