Reverse Discrimination Claims After Ames: An Employer’s Guide
Majority-group employees now prove discrimination under the same standard as everyone else. In June 2025, a unanimous Supreme Court held that Title VII doesn’t require them to show “background circumstances” suggesting the employer is the unusual one that discriminates against the majority. For California employers, the bigger effect is on DEI programs: any hiring, promotion, or program decision that takes race or sex into account can now draw a claim on an equal footing with any other.
What did the Supreme Court decide in Ames?
It struck down the “background circumstances” rule. In Ames v. Ohio Department of Youth Services (2025) 605 U.S. 303, a heterosexual employee claimed she lost a promotion and was demoted because of her sexual orientation. The lower courts ruled against her because she hadn’t shown “background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.”
The Court rejected that requirement. “As a textual matter, Title VII’s disparate-treatment provision draws no distinctions between majority-group plaintiffs and minority-group plaintiffs,” the opinion said. By protecting every “individual,” Congress “left no room for courts to impose special requirements on majority-group plaintiffs alone.”
The decision didn’t find that Ames was discriminated against. The Court sent the case back and noted that the state’s argument that her claims would fail anyway was left for “the courts below to address” on remand, according to the opinion. The holding is about the plaintiff’s first step, not the outcome.
Does Ames change California law?
Not much on paper, but it changes the litigation. California’s Fair Employment and Housing Act never drew the line the Sixth Circuit drew. Government Code section 12940(a) makes it unlawful for an employer to discriminate “because of the race, religious creed, color, national origin, ancestry,” sex, sexual orientation, or other listed characteristics “of any person.”
California courts also use the same three-step federal test. In Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, the Supreme Court of California said that “California has adopted the three-stage burden-shifting test established by the United States Supreme Court for trying claims of discrimination.”
So a majority-group employee in California already had a path under FEHA. What Ames removes is any argument, in a case pleaded under Title VII or both statutes, that the employee must meet a higher bar at the start. Expect these claims to survive the pleading stage and early summary judgment motions more often than they did in circuits that applied the old rule.
Which DEI practices draw discrimination claims?
Decisions that turn a protected characteristic into a factor. The EEOC’s technical assistance document on DEI-related discrimination says DEI initiatives “may be unlawful if they involve an employer or other covered entity taking an employment action motivated” in whole or in part by a protected characteristic such as race or sex.
The same document lists areas where it sees risk, including “Selection for interviews,” “Access to mentoring, sponsorship, or workplace networking / networks,” and internships labeled as fellowships. It also says unlawful segregation “can include limiting membership in workplace groups, such as Employee Resource Groups (ERG), Business Resource Groups (BRGs), or other employee affinity groups, to certain protected groups.”
That document is agency guidance, not a statute or regulation, and it states the EEOC’s enforcement position. It’s still a practical guide to what a charge will allege.
| Practice | Why it draws claims | Lower-risk design |
|---|---|---|
| Candidate slates that require a set number of candidates of a given race or sex | Interview selection is itself an employment decision | Broaden recruiting sources without reserving slots |
| Mentoring or leadership programs limited by race or sex | Exclusion from training is a term of employment | Open eligibility with published criteria |
| Employee resource groups closed to some employees | Membership limits can be treated as segregation | Groups open to any employee who wants to join |
| Diversity goals tied to individual manager bonuses | Shows a motive for individual hiring and promotion decisions | Tie goals to process steps such as outreach, not to outcomes |
The question in a lawsuit is always whether a particular decision was made because of a protected characteristic. A program on paper is evidence. A manager’s email saying the company “needs” to hire a candidate of a particular race or sex for a role is usually the more damaging evidence.
How does an employer defend a majority-group discrimination claim?
The same way it defends any disparate treatment claim: with a legitimate reason that holds up. Under the three-step test, once the employee makes a prima facie case, the employer explains the reason for its decision, and the employee then has to show the reason is a pretext. The “ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff,” as Ames noted in quoting earlier precedent, according to the opinion.
The reason doesn’t have to be a good business call. In Guz, the court said that “if nondiscriminatory, Bechtel’s true reasons need not necessarily have been wise or correct,” according to the opinion. What matters is that the reason was real and wasn’t a cover for discrimination.
These cases are usually won or lost on documentation made at the time. Interview scores, written selection criteria, and notes about why the chosen candidate was stronger carry weight that a manager’s after-the-fact explanation won’t. The weakest position is a hiring file with nothing in it except a diversity target.
The same goes for decisions outside hiring. Layoff selections, pay adjustments after an equity review, and choices about who gets a stretch assignment are all employment decisions that a majority-group employee can challenge. A layoff matrix that scores every employee on the same job-related factors is easier to defend than a list that a manager adjusted by hand to protect certain numbers. Pay adjustments should rest on the job-related factors the review measured, such as experience and performance, and the file should show that link. When the record shows that a protected characteristic played no part, the claim usually turns into a dispute about business judgment, which employers are far better placed to win.
Initial steps after a majority-group discrimination charge
The company’s DEI materials will be among the first documents requested, so the response should start with them. The firm’s page on employer defense in California employment cases has more on how these claims are handled.
- Preserve the hiring or promotion file, the interview notes and scores, the posting, the DEI policies and training materials in effect at the time, and the emails and texts of everyone involved in the decision.
- Calendar the response deadline on the EEOC charge, CRD complaint, or lawsuit, and check for an arbitration agreement and an EPLI policy that requires prompt notice.
- Identify the decision-makers and anyone who gave input on the decision, and avoid any change in how the complaining employee is treated.
- Pull the written criteria used for the decision and compare the chosen candidate’s qualifications with the complaining employee’s against them.
- Get legal advice before responding to the agency, revising or ending a DEI program, or discussing the claim with the employee.
Majority-group discrimination questions
Does Ames apply to FEHA claims?
Ames interpreted Title VII, a federal statute, so it doesn’t bind California courts reading FEHA. But FEHA protects “any person” from discrimination, and California courts apply the same three-step test that federal courts use. A majority-group employee suing under FEHA faces the ordinary prima facie burden, and many complaints plead both statutes together.
Can an employer still run a diversity program?
Yes, but the design matters. Programs that widen recruiting, open mentoring to everyone, and train managers on consistent evaluation carry far less risk than programs that reserve slots or benefits by race or sex. Before keeping, changing, or ending a program, review it with counsel, since changes made after a charge is filed can themselves become evidence.
Is an EEOC charge required before a Title VII lawsuit?
Yes. The EEOC’s technical assistance says a worker “first must file a charge of discrimination” with the agency before suing under Title VII in federal court. FEHA claims start with a complaint to the California Civil Rights Department. Either way, the employer’s position statement to the agency is often the first time its reasons are put in writing, so it deserves care.
Does a majority-group employee have to show anything special after Ames?
No. Under Ames, a majority-group plaintiff makes a prima facie case the same way any other plaintiff does. That doesn’t mean the employee wins. The employer can still show a legitimate reason, and the employee still has to prove that reason was a pretext for discrimination.
If your company faces a reverse discrimination claim
If your company has received an EEOC charge, CRD complaint, or lawsuit from an employee who says a DEI program or decision discriminated against them, the hiring records and the written selection criteria usually decide how strong the claim is. Rosenberger + Kawabata represents employers defending employment lawsuits and claims through its business litigation practice, including claims involving DEI programs and majority-group discrimination. Contact Rosenberger + Kawabata online for a confidential consultation, or call (310) 894-6921.
Sources
The statute is Government Code section 12940. The decisions are Ames v. Ohio Department of Youth Services (2025) 605 U.S. 303 and Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317. The agency guidance is the EEOC’s What You Should Know About DEI-Related Discrimination at Work.
This post is general information about California and federal employment law as of November 7, 2026. It is not legal advice, and reading it does not create an attorney-client relationship. Employment statutes, regulations, and court decisions change often, and the outcome of any claim depends on its facts. Past results do not guarantee future outcomes.