At the end of February 2025, the U.S. Supreme Court heard oral arguments in an employment discrimination lawsuit that focused on a reverse discrimination claim under Title VII of the Civil Rights Act of 1964. Although the Supreme Court’s decision isn’t expected for a few months, the questions posed during oral arguments provide potential insight into how the justices may rule.
Reverse Sexual Orientation Discrimination Claim
Marlean Ames, a heterosexual female, began working for the Ohio Department of Youth Services (DYS) in approximately 2004 and became a program administrator in 2014. In 2019, she applied for a new position that she didn’t receive.
Soon after, DYS demoted her, resulting in a substantial reduction in her compensation. The agency subsequently promoted a homosexual man to Ames’s previous administrator position, and later that year, DYS hired a homosexual woman for the position Ames applied for but didn’t receive.
Ames filed a lawsuit in federal court in Ohio alleging her employer had discriminated against her based on her sexual orientation. The trial court found in favor of DYS and dismissed her case.
Next, Ames appealed to the U.S. 6th Circuit Court of Appeals, the federal appellate court overseeing the federal district court in Ohio. The 6th Circuit agreed with the federal district court, holding that she lacked evidence of the “background circumstances” necessary to prove her reverse discrimination claim based on her sexual orientation. More specifically, she couldn’t show that a homosexual individual made the employment decisions at issue or that statistical evidence showed a pattern of discrimination by the agency against heterosexual employees.
After the federal appeals court also ruled against her, she appealed to the U.S. Supreme Court.
Notes From Oral Arguments
During the hearing on Ames’s appeal, the Supreme Court focused on the following issue during the oral arguments: To establish a Title VII discrimination claim, does an employee from a majority group need to show “background circumstances” suggesting the employer discriminates against the majority (rather than the minority) even though an employee from a minority group doesn’t have to satisfy the same requirement?
The Supreme Court justices’ questions during oral argument signaled they may be sympathetic to Ames’s position and ready to overturn the “background circumstances” requirement imposed by some federal courts. Justice Amy Coney Barrett, for example, questioned the Ohio solicitor general (who argued on behalf of DYS) about whether majority- and minority-group employees should be subject to the same requirements of proof when filing claims under federal discrimination laws.
Justices Brett Kavanaugh and Elena Kagan echoed those questions, and the Ohio solicitor general ultimately conceded that “the idea . . . [of] hold[ing] people to different standards because of their protected characteristics is wrong”—a concession that addressed the key issue before the court. Ames v. Ohio Department of Youth Services.
Consistency With Trump’s Executive Orders
The Supreme Court’s review of Ames and the “background circumstances” requirement for reverse discrimination claims comes on the heels of the Trump administration’s sweeping changes with respect to diversity, equity, and inclusion (DEI); federal gender identity and sexual orientation employment law protections for employees; and more.
The president issued multiple Executive Orders during his first week in office, one of which redefined “sex” and another that targeted DEI programs in the public and private sectors. The forthcoming decision in Ames could mark another change in federal employment discrimination law—a change that would align with the administration’s previous declarations on these related issues.
Next Steps
Although the Supreme Court isn’t expected to provide its ruling in Ames until late spring or early summer, you should begin preparing for a potential legal change in the “background circumstances” requirement for reverse discrimination claims applied by some courts. As always, you should ensure any adverse employment action taken against an employee is made for legitimate, nondiscriminatory, and nonretaliatory reasons. This practice helps ensure you aren’t making decisions based on protected characteristics, whether such characteristics fall into a “majority” or “minority” classification.
Alyssa Lankford is an attorney in the Oklahoma City office of McAfee & Taft. You can contact her at alyssa.lankford@mcafeetaft.com.
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