U.S. Supreme Court Rejects the “Background Circumstances” Test in Reverse Discrimination Cases: Implication of Decision for Colorado Employers
U.S. Supreme Court Rejects the “Background Circumstances” Test in Reverse Discrimination Cases: Implication of Decision for Colorado Employers
Laura Aghwana, Law Clerk
On June 5, 2025, the United States Supreme Court (the “Court”) vacated and remanded the Court of Appeals for the Sixth Circuit’s (the “Court of Appeals”) decision in Ames v. Ohio Department of Youth Services[1] (“Ames”), in which the Court of Appeals applied the heightened “background circumstances test” for reverse discrimination claims under Title VII of the Civil Rights Act of 1964 (“Title VII”) to grant summary judgment in favor of the employer. In so doing, the Court effectively abolished a significant evidentiary roadblock faced by members of “majority” groups who claim discrimination based on their protected class(es), which will dramatically affect discrimination jurisprudence in multiple federal circuits—including the Tenth Circuit.
Ames and the Background Circumstances Test
The Rocky Mountain Employer has discussed both the Ames litigation and the “background circumstances” test for reverse discrimination claims in prior blog posts.[2] As a refresher, the Court in Ames was tasked with deciding whether the background circumstances test for reverse discrimination claims, as recognized in the Sixth, Tenth, and other federal circuits, was valid under the statutory language of Title VII. Per the now-abrogated background circumstances test, a plaintiff who is alleging discrimination based on “majority” status (white, male, heterosexual, etc.) must, in addition to satisfying the traditional prima facie elements of discrimination claims under the McDonnell-Douglas burden-shifting analysis, demonstrate background circumstances showing that the defendant was one of those unusual employers which discriminates against the majority, or that the decisionmakers behind the alleged discrimination were members of a minority group.
The Supreme Court’s Decision and Reasoning
In a unanimous decision written by Justice Ketanji Brown Jackson, the Court held that the background circumstances test cannot be squared with the text of Title VII. The Court emphasized that Title VII does not impose such a heightened standard dependent on a person’s protected class (whether “majority” or “minority”), and Title VII’s explicit language leaves no room for courts to impose special requirements on majority-group plaintiffs. Justice Jackson noted that from a purely textual standpoint, Title VII makes no distinctions between “majority” and “minority” groups within a protected class, and the background circumstances test contrary to established precedent holding that Title VII prohibits discrimination against majority groups just as forcefully as against minority groups.
The Court also rejected the background circumstances test because it found that the test ignored prior precedent requiring that the first prong of the traditional prima facie test for discrimination (i.e., membership in a protected class) must not be inflexibly applied. Conversely, the background circumstances test imposes a rigid evidentiary standard to majority group members in every case, without exception, that would otherwise not be required for a prima facie claim of discrimination but for their majority status.
In his concurring opinion (also joined by Justice Gorsuch), Justice Thomas highlighted the problems that arise when judges create atextual rules or doctrines like the background circumstances test. Justice Thomas opined that such judicially-created tests and frameworks can distort the underlying statutory text, cause confusion for litigants and courts, and lead to erroneous results. Justice Thomas even questioned the validity of the McDonnell-Douglas burden-shifting framework for discrimination cases, noting that it is a judicial construct and may be unnecessary under Title VII.
Key Takeaways/ Employer Considerations
The Ames decision conclusively establishes that the standard for proving disparate treatment under Title VII does not vary based on majority or minority status and applies equally across all protected classes. Because the Court’s ruling constitutes an interpretation of existing federal law (i.e., Title VII), it is highly likely that the Ames decision will be applied retroactively to any pending or existing reverse discrimination claims. As noted previously, the Court’s decision has a particular impact on federal courts within the Tenth Circuit (including the District Court for the District of Colorado). Of course, regardless of the Ames decision, Colorado employers should continue to be mindful of discrimination-related issues in the workplace and be prepared to mount defenses against any such claims—regardless of whether the aggrieved individual is white, black, or any other protected class under the law.
[1] Ames v. Ohio Department of Youth Services, 605 U.S. ----, 2025 WL 1583264 (June 5, 2025).
[2] See https://www.rockymountainemployersblog.com/blog/2025/3/6/supreme-court-signals-rejection-of-the-background-circumstances-test-in-reverse-discrimination-cases; https://www.rockymountainemployersblog.com/blog/2024/10/17/supreme-court-reviews-the-background-circumstances-test-in-reverse-discrimination-cases-potential-implications-for-colorado-employers.