Supreme Court Clarifies Title VII Disparate Treatment Theory: What Employers Should Know in the Evolving Legal Environment

Earlier this month, the United States Supreme Court unanimously settled the burden required by a plaintiff to satisfy a prima facie showing of disparate treatment discrimination by an employer. On June 5, 2025, the Court held in Ames v. Ohio Department of Youth Services¹ that the plain text of Title VII does not differentiate burden requirements between minority-group plaintiffs and those of a majority group.

The decision specifically impacts the Sixth, Seventh, Eighth, Tenth and D.C. Circuit Courts of Appeal, which had identified a heightened burden for a prima facie case of disparate treatment by majority-group plaintiffs under Title VII. Nevertheless, employers everywhere should be mindful of this legal development, particularly considering other recent policy changes to anti-discrimination enforcement under the Trump administration.

How Did Ames Get to the Supreme Court?

Marlean Ames was hired by the Ohio Department of Youth Services in 2004 as an executive secretary. After a subsequent promotion to program administrator, Ames applied in 2019 for a brand-new management position. She interviewed for the position, but the Department chose a different candidate — a lesbian woman — to fill the role. A few days later, the Department informed Ames that she was being demoted from her program administrator position to her original executive secretary role, resulting in a significant pay cut. She accepted. The Department subsequently filled Ames’ recently vacated role with a gay man.

Ames then filed a lawsuit against the Department alleging discrimination because she was denied the promotion and subsequently demoted. The issue: Ames identifies as a heterosexual woman. The candidate selected by the Department for the management role is a lesbian woman, and the newly hired individual who filled Ames’ previous position is a gay man. According to Ames, her employer violated Title VII by discriminating against her based on her sexual orientation.

The U.S. District Court for the Southern District of Ohio granted summary judgment to the Department. Under the well-known McDonnell Douglas Corp. v. Green² framework and Sixth Circuit precedent, the district court determined that Ames did not satisfy her prima facie showing of disparate treatment “because she had not presented evidence of ‘background circumstances’ suggesting that the agency was the rare employer who discriminates against members of a majority group.”³

The Sixth Circuit affirmed. Unless Ames could show background circumstances — meaning “evidence that a member of the relevant minority group . . . made the employment decision at issue, or with statistical evidence showing a pattern of discrimination . . . against members of the majority group” — her prima facie case failed.⁴ The Sixth Circuit panel reasoned that, because Ames did not show the employment decision maker identified as homosexual or provide statistical evidence showing a pattern that heterosexual employees were discriminated against, the district court properly granted summary judgment for the Department.⁵

Recognizing the different evidentiary burdens split between the circuit courts, the Supreme Court granted certiorari to settle the standard.⁶

How Is Title VII Applied?

The Statute. Title VII of the Civil Rights Act of 1964 provides anti-discrimination protections for employees. Specifically, an employer cannot intentionally discriminate against their employees “because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1).

The McDonnell Douglas-Burdine Burden Shifting Framework. In McDonnell Douglas, the Supreme Court established a “three-step burden-shifting framework” to evaluate whether an employer intentionally discriminated against the employee claiming disparate treatment under Title VII.⁷ Under McDonnell Douglas and its progeny, a plaintiff must initially “establish[] a prima facie case” by producing enough evidence to support an inference of discriminatory motive.⁸ If the plaintiff can make a prima facie case, the employer must then “articulate some legitimate, non-discriminatory reason” to explain the adverse action against the employee.⁹ The final step returns the burden back to the plaintiff, who must show that the employer’s stated reason was merely pretext.¹⁰

As the Ames Court notes, this version of the McDonnell Douglas framework applied to most plaintiffs. However, under the Sixth Circuit and many others, majority-group plaintiffs required a more onerous showing to make out a prima facie case under the first prong.¹¹

When Congress Said No Discrimination, It Meant No Discrimination

The Supreme Court rejected that heightened burden. The Ames Court recounted precedent explaining Congress’ intent in passing Title VII — that discrimination against any group based on protected characteristics in employment is unlawful — including Bostock v. Clayton County, 590 U.S. 644 (2020), McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273 (1976), and Griggs v. Duke Power Co., 401 U.S. 424 (1971).¹² Writing for the Court, Justice Jackson emphasized that Title VII’s text focuses “on individuals rather than groups,” barring discrimination against “any individual” because of protected characteristics, and that Congress “left no room for courts to impose special requirements on majority-group plaintiffs alone.”¹³

Beyond the plain reading of Title VII, Justice Jackson also reasoned that the Court’s precedent balked at “rigid, mechanized, or ritualistic” requirements for establishing a prima facie case and instead directed courts to focus on the context of the claim.¹⁴ By enumerating evidentiary bars for majority-group plaintiffs, the Sixth Circuit’s “background circumstances” rule “ignored” the Supreme Court’s instructions.¹⁵

The state of Ohio, as Ames’ employer, argued that the “background circumstances” requirements did not add an additional element but rather provided the context the Supreme Court emphasized courts should focus on for evaluating claims. The Supreme Court firmly rejected that argument, finding Ohio’s position “directly at odds with the Court of Appeals’ description of the ‘background circumstances’ rule and its application.” Justice Jackson noted that the Sixth Circuit had explicitly stated that Ames “must make a showing in addition to the usual ones for establishing a prima-facie case” and had even acknowledged that “otherwise Ames’s prima-facie case was easy to make” before faulting her for failing the additional evidentiary requirements.¹⁶

The Justices Coalescing Around Individual-Focused Analysis

Justice Jackson’s opinion in Ames, emphasizing individual-centered rather than group-based legal analysis, aligns with her dissent in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (SFFA).¹⁷ In both contexts, Justice Jackson has advocated for legal frameworks that assess individuals comprehensively rather than applying rigid, categorical rules based on group membership. Her Ames opinion’s emphasis that Title VII focuses “on individuals rather than groups” and bars discrimination against “any individual” echoes her SFFA dissent’s call for “personalized assessment of the advantages and disadvantages that every applicant might have received by accident of birth plus all that has happened to them since.”¹⁸

In his concurring opinion, Justice Thomas added to the critique against the “background circumstances” rule, broadly admonishing “improper judicial lawmaking.”¹⁹ Justice Thomas posited that the D.C. Circuit created the original rule (in Parker v. Baltimore & Ohio R. Co.) based on what the circuit judges deemed “common sense,” but was actually grounded in a “mistaken understanding of the McDonnell Douglas framework.” He warned that it is becoming increasingly more difficult to define the term “majority,” especially amid demographic changes in race, sex and religion across the United States, noting that demographic composition varies significantly by geography (e.g., Black employees are the majority in Detroit but not Michigan overall) and industry (e.g., women are the majority in teaching and nursing but the minority in construction).²⁰

Justice Thomas’ Criticism of DEI

Notably, Justice Thomas’ concurrence also directly addressed diversity, equity and inclusion (DEI) programs in a footnote, contending that the “background circumstances” rule was “nonsensical” because it assumed only “unusual” employers would discriminate against majority groups. He observed that “a number of this Nation’s largest and most prestigious employers have overtly discriminated against those they deem members of so-called majority groups” and that “American employers have long been ‘obsessed’ with ‘diversity, equity, and inclusion’ initiatives and affirmative action plans” that “have often led to overt discrimination against those perceived to be in the majority.”²¹

What Does Ames Mean for Employers?

Immediate Litigation Impact

Immediately, employers operating in states within the Sixth, Seventh, Eighth, Tenth and D.C. Circuits potentially face majority-group plaintiffs with a lesser burden for establishing a prima facie case of discrimination than before.²² Without the need to show additional “background circumstances” under the first prong of McDonnell Douglas, employers must take increasing care that any adverse decisions they make are based on legitimate, non-discriminatory (and well-documented) reasons. The decision also leaves open the possibility of future challenges to the McDonnell Douglas framework itself, given Justice Thomas’s pointed critique.

Standing alone, the Ames case is relatively narrow in scope, holding only that all employment discrimination plaintiffs must meet the same evidentiary test. However, taken together with other recent Supreme Court decisions and current enforcement priorities, Ames signals a broader judicial and regulatory shift toward individual-focused rather than group-based approaches to anti-discrimination law.

This change to Title VII’s standard for showing a prima facie case comes among a changing federal regulatory and enforcement environment, including:

• Reverse Discrimination Lawsuits. In the wake of SFFA, member-based organizations and other plaintiffs have initiated numerous lawsuits targeting employers for programs and policies they claim amount to “reverse discrimination” against majority-group employees under the guise of DEI.
• Executive Branch Policy and Enforcement Shift. Over the past five months, Trump administration executive orders and agency memoranda have targeted DEI policies and programs across the federal government, federal contractors and grantees, and at prominent, national employers (including several law firms). And this past March, the U.S. Equal Employment Opportunity Commission (EEOC) and Department of Justice issued joint technical guidance warning employers against race- and sex-based discrimination and invited employees to submit charges of discrimination for DEI in the workplace. Among other DEI practices identified, the EEOC warned against differentiating employees — or as the DOJ coined in its February 2025 memorandum, “discriminate, exclude, and divide” — in aspects of employment, including fringe benefits, mentoring or sponsorship programs, candidate lists and interview slates, employee resource groups, and trainings.
• Court Challenges to EEOC Guidance. Additionally, a U.S. District Court for the Northern District of Texas vacated parts of the EEOC’s Enforcement Guidance on Harassment in the Workplace, which had expanded on the logic in the Supreme Court’s Bostock decision and interpreted Title VII’s sex-based discrimination protections to include harassment based on gender identity and sexual orientation. The district court judge determined that the EEOC “exceeded its statutory authority by issuing Enforcement Guidance requiring bathroom, dress, and pronoun accommodations inconsistent with the text, history, and tradition of Title VII.”²³

The Ames decision adds another arrow to the proverbial quiver against DEI-related employment practices. As EEOC Acting Chair Lucas proclaimed, “In the wake of Ames, there can be no more confusion. Following this week’s decision, the flawed ‘background circumstances’ test no longer shields employers — including ‘our Nation’s largest and most prestigious’ — in any jurisdiction nationwide from any race or sex discrimination that may arise from those employers’ DEI initiatives.”

How Can Employers Approach These Changes?

The cumulative effect of recent Supreme Court precedents — including Ames and SFFA — establishes that any discrimination rooted in protected characteristics will be legally suspect, regardless of whether the motivation was malicious or intended to be remedial.

Employers should conduct immediate privileged audits of workplace policies and programs, focusing on:

• Hiring and Retention Practices: Review recruiting, hiring, promotion and termination procedures for any preferences based on protected characteristics.
• Talent Development and Career Enrichment: Assess mentoring, sponsorship, employee resource/affinity groups and professional development programs for any differential treatment by design or effect.
• Documentation Standards: Strengthen record-keeping for all employment decisions with clear, legitimate business justifications.
• Training Updates: Revise manager training to emphasize individual merit-based assessments over group-based considerations.
• Vendor Relationships: Evaluate supplier diversity programs and contractor requirements for compliance risks.

The Path Forward

While the legal and policy enforcement landscape continues to shift, this does not eliminate the possibility of pursuing business objectives through lawful means. Employers can still consider individual circumstances such as socioeconomic background, educational obstacles overcome, geographic diversity, or unique life experiences without using protected characteristics as proxies. The key is ensuring that employment decisions focus on individual merit and circumstances rather than group membership.

The Ames decision represents more than a technical correction to Title VII jurisprudence — it signals the Supreme Court’s alignment toward individual-focused anti-discrimination law. Justice Jackson’s unanimous opinion, emphasizing that “Congress left no room for courts to impose special requirements on majority-group plaintiffs alone,” establishes a clear constitutional principle: equal treatment under law requires equal procedural treatment in court.

For employers, this shift arrives at a moment of unprecedented enforcement activity targeting DEI initiatives. The confluence of court decisions, federal enforcement priorities and political momentum creates both immediate compliance challenges and long-term strategic opportunities. Organizations that proactively audit their practices, strengthen their documentation, and refocus on individual merit-based assessments could emerge better positioned to attract talent while minimizing legal risk.

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