# Ames v. Ohio Department of Youth Services

Ames v. Ohio Department of Youth Services is a pending United States Supreme Court case about whether a claim of reverse discrimination requires a showing of additional "background circumstances" supporting a suspicion that the employer discriminates against the majority group.

## Legal background

In Title VII of the Civil Rights Act of 1964, Congress prohibited discrimination in employment on the basis of the protected characteristics of color, race, sex, religion, and national origin.$^{:174}$ In McDonald v. Santa Fe Trail Transportation Co. (1976), the Supreme Court held that this prohibits discrimination against members either of a minority group or of a majority group.$^{:169}$ And in Bostock v. Clayton County (2020), the Supreme Court held that discrimination on the basis of sexual orientation qualifies as prohibited discrimination on the basis of sex.
In McDonnell Douglas Corp. v. Green (1973), the Supreme Court held that, in order to survive a motion for summary judgment, a plaintiff alleging discrimination under Title VII must make a prima facie showing of discrimination, the first in a series of shifting burdens of proof known as McDonnell Douglas burden-shifting.

## Case history

The case was brought by Marlean Ames, a straight woman who alleged that the Ohio Department of Youth Services discriminated against her on the basis of sexual orientation in violation of Title VII of the Civil Rights Act of 1964. She had worked in the department since 2004. In 2017, Ames was reassigned to a new supervisor, who was a lesbian woman. In 2019, she applied for a promotion to be bureau chief of quality. Her application was rejected, and she was demoted from her position as administrator shortly afterwards. The promotion was given instead to a lesbian co-worker, and the administrator position was given to a 25-year old gay man.
Ames sued in the United States District Court for the Southern District of Ohio. The district court granted summary judgment in favor of the defendant, applying the "background circumstances" test, under which Ames had to show either statistical evidence that her employer discriminated against the majority group or evidence that the employment decision was made by the minority group. On appeal, the Sixth Circuit Court of Appeals said that Ames had satisfied the usual elements of a prima facie showing of sex discrimination because she was demoted from a position from which she was qualified and replaced with a gay man. However, the Sixth Circuit held that she had failed to make an additional showing of background circumstances to support an inference that the employer would discriminate against the majority group (heterosexuals), so the court affirmed the judgment.
Judge Kethledge concurred in the majority opinion based on the Sixth Circuit's prior precedents recognizing the background circumstances test, but criticized the test and called for the Supreme Court to review the question. He noted that there was a circuit split, saying that five federal court of appeal circuits apply the test, seven do not, and two of those had expressly rejected it.

## Supreme Court

On October 4, 2024, the Supreme Court agreed to hear the case, and oral arguments were heard on February 26, 2025. A ruling is expected by the end of June 2025. Elizabeth Prelogar, the Solicitor General at the time during the Biden administration, filed an amicus brief for the United States agreeing with Ames that the background circumstances test should be rejected.

## Significance

Reverse-discrimination lawsuits have increasingly been used to challenge employers' diversity, equity, and inclusion programs, especially after Students for Fair Admissions v. Harvard (2023), the Supreme Court case striking down race-based affirmative action in higher education. A reversal of the court of appeals in Ames could make it easier for reverse-discrimination claims to succeed—at least in the five circuits that had adopted a "background circumstances" test.