The U.S. Supreme Court unanimously ruled on June 5, 2025, that so-called “reverse discrimination” claims – Title VII claims brought by members of a majority group – are not subject to a heightened standard of proof and should be treated the same as claims brought by members of historically disadvantaged groups. Further, two Supreme Court justices issued a concurring opinion disputing the validity of the long-standing “McDonnell Douglas” framework for evaluating Title VII claims when there is no direct evidence of discrimination. Both the court’s ruling and the concurring opinion have significant implications for Connecticut employers.
The Case
In Ames v. Ohio Department of Youth Services, the plaintiff, Marlean Ames, claimed her employer discriminated against her because she is heterosexual. The Supreme Court struck down the ruling of the Sixth Circuit, which held that Ames did not have a case, based on the standard that majority-group plaintiffs must demonstrate “background circumstances” above and beyond what is required for minority-group plaintiffs to maintain a discrimination case. In its ruling, the Supreme Court invalidated the “background circumstances” test, holding that majority-group and minority-group plaintiffs have the same standard for pleading and proving workplace discrimination claims. Thus, the Supreme Court held that employment decisions cannot be based on race, gender, sexual identity, or other protected characteristics no matter the identity of the victim.
The Concurring Opinion
Justice Clarence Thomas, joined by Justice Neil Gorsuch, authored a concurring opinion that cast serious doubt on the continued use of the so-called McDonnell Douglas framework, a legal standard established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U. S. 792 (1973), which courts routinely apply when evaluating summary judgment motions in discrimination cases in which there is no direct evidence.
When a defendant files a motion for summary judgment, claiming that the plaintiff cannot prevail, courts for decades have employed the McDonnell Douglas three-part analysis to decide the motion. First, plaintiffs must establish a prima facie case by showing some evidence that an adverse employment decision was made against them based on their race, creed, gender, sexual identity, or other protected characteristic. If the plaintiff meets that low bar, the burden then shifts to the employer to provide a legitimate, nondiscriminatory reason for the employment decision. If the defendant meets that burden of persuasion, the court goes back and asks if the plaintiff has evidence that the defendant’s stated nondiscriminatory reason is pretext. Plaintiffs therefore have the burden of not only making their case but also showing that the reason the defendant gave for discriminating against them was pretext.
Justice Thomas takes issue with the fact that the statute and the federal rules of civil procedure give no indication that the McDonnell Douglas analysis should be used for interpreting Title VII cases. “As with the ‘background circumstances’ rule, the McDonnell Douglas framework lacks any basis in the text of Title VII and has proved difficult for courts to apply,” he wrote. He also stated, “I seriously doubt that the McDonnell Douglas framework is a suitable tool for evaluating Title VII claims at summary judgment. In my view, the framework is incompatible with the summary-judgment standard; it fails to encompass the various ways in which a plaintiff could prove his claim; it requires courts to maintain artificial distinctions between direct and circumstantial evidence; and it has created outsized judicial confusion.”
In most modern workplace discrimination cases, there is no smoking gun, such as an admission by the employer that an employee was fired or demoted due to race or gender. These cases are therefore typically based on circumstantial evidence, and the McDonnell Douglas test is a high bar for plaintiffs to meet at the summary judgment stage. As Justice Thomas wrote in assailing the use of the test, “requiring a plaintiff to satisfy the McDonnell Douglas framework…requires a plaintiff to prove too much at summary judgment.”
Because of the high burden, use of the McDonnell Douglas framework in evaluating summary judgment motions has led to the dismissal of many employment discrimination cases. But with the two justices’ strong rebuke of McDonnell Douglas, the future of this long-standing test may be in doubt.
The Takeaway for Employers
The Supreme Court decision may usher in a wave of reverse discrimination cases brought by members of historically advantaged groups, such as Caucasians, men, and heterosexuals. Further, if the justices’ rebuke proves to sound a death knell for the McDonnell Douglas framework, employers can expect that more discrimination claims overall will survive the summary judgment phase to advance to trial.
As an employer, you can help protect yourself by ensuring all employment decisions are supported by legitimate, non-discriminatory reasons, such as disparity in education, experience, skills, customer satisfaction scores, or work ethic, by thoroughly documenting your reasons when hiring, terminating, promoting, demoting, transferring, or making other employment decisions.
Employee performance should be regularly reviewed in writing. When there are deficiencies in an employee’s work, you should communicate them in writing to the employee as soon as feasible, along with what the employee can do to correct the deficiency with a timeline for improvement. Employee performance forms should have space for the employee to sign their name and disagree with what you said. This helps establish a record that you communicated the information to the employee.
While performance reviews, disciplinary notices, and employee improvement plans may not be popular, they not only allow you to establish a paper trail to support your decisions, but they enhance communication in the workplace and provide employees with a greater understanding of what is expected of them.
If you find yourself facing a discrimination claim or lawsuit, having thorough documentation to back up your reasons your employment decisions were made can go a long way in shielding your company from liability.
Joshua M. Auxier, a partner at FLB Law in Westport, Conn., is a litigator with nearly two decades of experience representing clients in professional liability, directors and officers liability, and general liability matters, including representing employers in employment law matters. Contact Josh at auxier@flb.law or 203.635.2200. For more information about FLB Law, click here.
