In Ames v. Ohio Youth Services, the Supreme Court Follows the Text and Rejects Discrimination

On June 5, the Supreme Court issued a unanimous decision in Ames v. Ohio Department of Youth Services. The opinion was written by Justice Jackson, and it held that the Sixth Circuit had incorrectly applied a heightened burden in employment discrimination cases where the plaintiff is part of a “majority” group—think heterosexuals, males, or Caucasian individuals. The Sixth Circuit’s test has been called the “background circumstances” test because majority group plaintiffs were generally required to establish additional circumstances to explain why an employer would discriminate against someone who was allegedly part of the majority of the workforce.

Let’s take a step back. Under Title VII of the 1964 Civil Rights Act, employers generally may not discriminate against applicants or employees based on race or sex, among other characteristics. In order to adjudicate claims of discrimination, many lower courts used (and continue to use) a burden-shifting test that was announced in a case called McDonnell Douglas Corp. v. Green. That test first requires plaintiffs to present a prima facie case of discrimination; employers then have the burden to establish a race-neutral reason for their adverse treatment of the plaintiff; and then finally, plaintiffs may establish that an employer’s proffered neutral reason for adverse action is actually a pretext for discrimination.

In Ames, as in other Title VII cases, the “background circumstances” test came into play at Step 1. Ms. Ames alleged that she suffered discrimination when homosexual employees were treated more favorably than herself, a heterosexual employee. She pointed specifically to a gay female who was promoted over her, and a gay male who filled her position after she was demoted. Much of Ms. Ames’ argument relied on the logic of the Supreme Court’s decision in Bostock v. Clayton County, Georgia, which held that discrimination based on homosexuality constitutes discrimination based on sex. Ms. Ames argued that the reverse should be true as well.

The district court rejected Ms. Ames’ discrimination claim for failure to establish background circumstances—and thus failing Step 1 of the McDonnell Douglas test—at the summary judgment stage. The Sixth Circuit affirmed, but in a concurrence, Judge Kethledge questioned whether the background circumstances test was consistent with Title VII and suggested that it might violate equal protection principles.

Represented by the University of Virginia Supreme Court clinic, Ms. Ames petitioned for certiorari to the U.S. Supreme Court. The Court granted certiorari to decide whether the background circumstances test—which was also used in the Tenth and DC Circuits, among other courts—was consistent with Title VII.

Oral argument occurred on February 26, 2025; the Federalist Society hosted a Courthouse Steps webinar to analyze the arguments the same day. Interestingly, the Court spent much of the time questioning Ms. Ames’ attorney about the McDonnell Douglas test itself. And the Ohio Solicitor General urged the Court to affirm on other grounds, largely avoiding the issue of whether majority group plaintiffs ought to be treated differently under Title VII, and he even condemned the phrase “reverse discrimination.” But the Court seemed disinclined to entertain these alternative arguments.

That was borne out in the Court’s unanimous decision issued on June 5, which was discussed in a FedSoc Courthouse Steps webinar the following day. Justice Jackson’s reasoning was straightforward: she noted that nothing in Title VII’s text authorizes courts to treat different plaintiffs differently when evaluating employment discrimination claims. The decision echoed the Court’s recent opinion in Muldrow v. City of St. Louis, which also rejected the idea that courts could add elements to Title VII’s text and then use those elements to dismiss claims. (In that case, the question was whether an adverse employment action had to impose a “materially significant disadvantage” on a plaintiff, which Justice Kagan rejected in a unanimous opinion based on the statute’s text.)

Justice Thomas joined the majority and also wrote a concurrence, joined by Justice Gorsuch, broadly condemning judge-made tests that lack grounding in statutory text. One such test comes from McDonnell Douglas itself, which the concurring Justices suggested ought to be revisited in a future case. But the concurrence also offered a compelling condemnation of the background circumstances test, noting that it was incoherent even on its own terms: Males are not actually a “majority group”; Caucasians may be a majority in the United States as a whole, but they are not a majority in numerous localities throughout the country; and modern DEI programs fundamentally undermine the logic of the background circumstances test. On this point, Justice Thomas cited to an amicus brief filed by America First Legal, which described efforts by employers to actively emphasize race and sex in so-called “Diversity, Equity, and Inclusion” programs.

Unfortunately, race-conscious decision-making in lower courts will likely continue, even though the Supreme Court invalidated the background circumstances test. In the amicus brief authored by Mountain States Legal Foundation, our firm, we pointed out that judges use race and sex as factors in determining (1) whom to appoint as class counsel in class actions; (2) whether to grant a hearing or oral argument; and (3) whether to hold that a search occurred under the Fourth Amendment’s “search and seizure” elements. These topics were not addressed directly in Ames, but the Court will likely encounter them in future cases.