The U.S. Supreme Court heard oral argument in a case that poses the question: Should there be a heightened pleading standard in so-called "reverse discrimination" cases under Title VII of the Civil Rights Act? The federal government believes the answer should be no and is, instead, urging the Supreme Court in Ames v. Ohio Department of Youth Service to find that anti-discrimination protections should be applied equally to all workers.
The federal government's position directly contradicts the approach by five federal circuit courts of appeal that currently apply a heightened pleading standard for reverse discrimination cases - where "majority" group plaintiffs, including male, white, and heterosexual workers, allege discrimination. Under the heightened pleading standard, majority group plaintiffs must establish "background circumstances" tending to show that their employer discriminates against members of majority groups.
The Sixth Circuit in Ames applied this heightened standard and affirmed the dismissal of a heterosexual woman's claim of bias by her employer in favor of LGBTQ workers. The employee appealed the decision and, on Oct. 4, 2024, the Supreme Court granted certiorari as to whether a heightened pleading standard should apply in reverse discrimination cases.
On Dec. 16, 2024, the Equal Employment Opportunity Commission (EEOC) and the Department of Justice (DOJ) filed one of several amicus briefs in the case. On Feb. 26, 2025, the Assistant to the Solicitor General argued on behalf of the EEOC and the DOJ that a heightened pleading standard frustrates Title VII's purpose and contradicts court precedent. Instead, she argued, the Court should direct the Sixth Circuit to apply the same pleading standard for all workers under Title VII - the law that prohibits discrimination against employees on the basis of race, color, religion, sex, or national origin.
Ames v. Ohio Department of Youth Services
In Ames, a heterosexual employee named Marlean Ames sued her employer, the Ohio Department of Youth Services, for discrimination. She alleged that the Department denied her application for a promotion in favor of a gay woman with less experience who had not applied for the job, and that she was then demoted and replaced by a gay man who had less tenure with the Department.
The district court granted summary judgment in favor of Ames' employer. The Sixth Circuit upheld the decision, explaining that a majority group plaintiff such as Ames has a separate burden in addition to the ordinary prima facie discrimination showing under McDonnell Douglas v. Green. In a typical discrimination case a plaintiff must show: (1) that he/she is a member of a protected class; (2) that he/she was qualified to perform the job in question; (3) that he/she was subjected to an adverse employment action; and (4) that his/her employer treated similarly situated employees outside his/her class more favorably. However, in the Sixth, Seventh, Eighth, Tenth and D.C. Circuits, majority group plaintiffs must also show "background circumstances that support the suspicion that the defendant is that unusual employer who discriminates against the majority."
In affirming summary judgment in favor of Ames' employer, the Sixth Circuit explained that majority plaintiffs typically meet the "background circumstances" test with statistical evidence showing a pattern of discrimination against a majority group by the employer. A majority plaintiff can also meet the test by showing that a minority group member made the employment decision at issue. Ames, however, had not made either showing. The employees who decided to deny Ames' promotion and demoted her were not gay, and there was no evidence that her employer had a pattern of discriminating against heterosexual employees.
EEOC and DOJ urge SCOTUS to reject heightened pleading standard
The Supreme Court heard oral argument in Ames on Feb. 26, 2025. The Court granted the government leave to participate in oral argument as amicus curiae. Counsel for the government urged the Court to reject the "background circumstances" test, in part, because the test could screen out cases with merit. She argued that a heightened pleading standard for reverse discrimination cases frustrates Title VII by ignoring the ultimate issue in a disparate-treatment claim - the employer's treatment of the individual plaintiff, not the treatment of the broader group to which the plaintiff belongs.
In their joint EEOC/DOJ amicus brief, the government had, similarly, argued that even if an employer ordinarily treats members of the plaintiff's class well, that is no defense to discrimination against a particular plaintiff. In support, the EEOC/DOJ cited the landmark equal-treatment decision in Bostock v. Clayton County, Ga., where the Court held that Title VII's protections extend to sexual orientation and transgender status.
Even counsel for the Ohio Department of Youth Services agreed that "it is wrong to hold some litigants to a higher standard because of their protected characteristics." While counsel disagreed that Ames had, in fact, been held to a higher standard because she is heterosexual, he did not disagree with the justices that there should be a uniform pleading standard for everyone.
The rare point of agreement prompted Justice Neil Gorsuch to remark that, "[w]e're in radical agreement today on that, it seems to me."
Takeaways for employers
A decision by the Supreme Court is not expected until the summer. Based on the questions at oral argument, it does seem likely that the Court will ultimately remove the "background circumstances" hurdle for majority plaintiffs. If that does happen, the path will be less difficult for reverse discrimination cases to proceed - but only in the five circuits currently applying the heightened pleading standard.
One possible impact of the case is that it could lead to more reverse discrimination cases. Justice Amy Coney Barrett seemed to echo this concern in her question to Ames' attorney about whether the case could "throw the door wide open to Title VII suits." In response, Ames' attorney pointed out that, currently, more than half of the circuit courts do not have a heightened pleading standard, and yet there has been no rush to litigate in these circuits.
Ultimately, it is too soon to forecast the Supreme Court's reasoning and its potential impact. And while the Ames case may lead to more majority plaintiff discrimination cases, the steps employers can take to prevent discrimination claims remain unchanged. Employers in all circuits should always take steps to ensure that employment decisions are based on legitimate (nondiscriminatory) business reasons. Employers should also make sure that employment decisions are sufficiently documented and can be supported if challenged. Ames only underscores the importance of practices that most employers should already be implementing.