The Supreme Court issued a rare unanimous decision on June 5, 2025 in the case of Ames v. Ohio Department of Youth Services. In this case, Marlean Ames, a heterosexual woman, alleged that she was denied two separate promotions in favor of homosexual candidates, and she alleged that her employer illegally considered sexuality in making these employment decisions and discriminated against her based on her heterosexuality. The initial reviewing court rejected her claim, relying on the legal principle that, in order for a member of the majority to show discrimination, they have to first show background circumstances that demonstrate that their employer is the “unusual employer” who discriminates against the majority. This is a different standard than members of a minority group, who only had to show that discrimination occurred, and did not have to present background circumstances in conjunction with their claim of discrimination. The 6^th Circuit affirmed the lower court, but Judge Kethledge wrote a concurring opinion, noting that he had to abide by the binding precedent of prior decisions establishing the “background circumstances” test (hence why it was a concurring opinion and not a dissenting opinion), but that he disagreed with the test.

The Supreme Court took up the matter on appeal and, in a 9-0 decision, reversed the lower court and eliminated the “background circumstances” test that was previously required for members of the majority bringing discrimination claims. Justice Ketanji Brown Jackson authored the decision. Justice Jackson wrote that Title VII (a body of law that prohibits discrimination on the basis of race, gender, sexuality, color, religion, and national origin) does not distinguish between members of the majority and members of a minority group. The “background circumstances” test required certain plaintiffs to have to produce certain types of evidence that other plaintiffs did not. Justice Thomas wrote, and Justice Gorsuch joined, in a concurring opinion that adopted the majority opinion, but chastised prior judges for creating the “background circumstances” test in the first place.

The result of the Ames decision is that it will be easier for members of the majority to bring charges of discrimination and lawsuits against their employers. In conjunction with the recent Supreme Court decision in Muldrow v. St. Louis, where the Court ruled that discrimination doesn’t have to result in significant harm to be actionable, it just has to result in “some harm” (for example, a job transfer that doesn’t result in a loss of pay previously was not sufficient harm to serve as the basis of a discrimination claim, but now it is), many previous hurdles that existed in bringing discrimination claims are being removed. Companies that implement DEI programs should be especially cautious and make sure that their programs do not benefit one protected group at the expense of another. DEI can still be used to broaden applicant pools and to ensure inclusion and that all voices within a company are heard and respected, but any use of hiring quotas or the exclusion of certain people from affinity groups, internships, or mentorship programs could easily serve as the predicate for a lawsuit under the most recent Supreme Court jurisprudence.

If you have any questions about recent developments in discrimination law, or need help making sure you are implementing your companies important diversity and inclusion initiatives in a non-discriminatory way, or if you feel that you have been discriminated against at work on the basis of any protected characteristic, please contact our firm at 913-345-5555, or you can contact Ben Ashworth directly at [email protected].