Ames Decision Reinforces Equal Opportunity Under Title VII

The recent Ames v. Ohio Department of Youth Services decision has offered clarity for HR professionals concerning Title VII’s protections against discrimination. In the SHRM webinar “Ames v. Ohio: Reinforcing Equal Opportunity for All Employees,” Jim Link, CHRO at SHRM, hosted Camille Olson, a partner at Seyfarth, and Jonathan Segal, a partner at Duane Morris LLP, to discuss what employers can take away from the long-awaited decision. 

Key Takeaways from Ruling

With the unanimous Ames decision, “there should be no more confusion,” Olson said. “It really invites us to go back to our foundational legal principles,” including both the U.S. Constitution’s equal protection clause and Title VII, which prohibits employment discrimination based on sex, religion, race, color, and national origin. Title VII protects individuals from discrimination in hiring, termination, promotion, compensation, and other aspects of work. 

  HR’s Guide to the Ames Decision

Within the Ames decision, the Supreme Court settled a circuit split, which is when two or more federal appeals courts disagree on how to interpret the same law. In doing so, it clarified what type of evidence a potential plaintiff would need to provide during the early stages of litigation under Title VII. The core principles reinforced by the Ames decision are that every individual is entitled to protection from discrimination, and the law makes no distinction based on the potential plaintiff. 

This is the case “whether they are in the minority or the majority group within a protected characteristic,” Olson said. 

She cited Justice Ketanji Brown Jackson’s opinion, which stated, “Title VII’s disparate treatment provision draws no distinctions between majority group plaintiffs and minority group plaintiffs.” 

Thus, “majority” plaintiffs — meaning those not traditionally believed to be disadvantaged — will not have to overcome artificial procedural barriers in order to obtain Title VII’s protections against discrimination, which is, and has always been, unlawful no matter who the target is. 

Title VII in Practice

Segal drew attention to recent discrimination cases to explain how Title VII has changed in practice. 

“Historically, the court had said race could be a plus factor” for college financial aid, Segal said, but in Students for Fair Admissions v. President and Fellows of Harvard College (2023), the Supreme Court said race-conscious admissions practices could no longer be used. Although that case concerned Title VI, it was recognized that the reasoning could potentially be applied to Title VII in the future. 

It was “sort of a clarion call that we don’t consider race, sex, or any other protected characteristic under Title VII, even if the goal is to increase diversity,” Segal explained. This case didn’t change the law, but it clarified how the court may interpret the issue going forward.

In Muldrow v. City of St. Louis (2024), the Supreme Court settled a circuit split when it considered what level of harm a plaintiff must demonstrate when alleging discriminatory acts related to terms or conditions of employment. Within this particular circuit, the lower courts had required plaintiffs to show significant or substantial harm, but the Supreme Court only required “some” harm — in Segal’s view, “a relatively low standard” that is easy to meet. 

The Supreme Court in Ames rejected having a higher standard for alleging so-called reverse discrimination cases. “There isn’t a heightened standard to allege discrimination if you’re a white straight male versus a Black lesbian female,” Segal said.  

He highlighted the U.S. Equal Employment Opportunity Commission’s position that “there is no such thing as ‘reverse’ discrimination; there is only discrimination.” Segal predicted that “we’re going to see a continued acceleration of claims brought by those who historically — no longer — are referred to as majority-group employees.” 

Consistency and Managing Risk

Following the Ames decision, employers may be wondering whether their current employment practices put them at risk of a discrimination claim. In effect, the decision may prompt a change in perspective. 

“Nondiscrimination protections are focused on protecting individuals, not groups,” Olson said, recalling the language used by Jackson. Olson recommended that employers use identity-neutral evidence to make employment decisions to ensure consistency in treatment for all employees. 

In speaking about termination practices, Segal echoed Olson’s sentiment. 

“I worry less about the person that says, ‘This person falls in a protected group,’ ” and perhaps exercises greater due diligence prior to terminating, he said. “I worry when they think the person doesn’t and they don’t pay the same attention to fairness, to consistency.” 

For example, Segal cautioned against HR professionals being inconsistent in their treatment of employees in similar situations — such as giving greater due process to female employees than male employees prior to termination. For the terminated male employee, the evidence of being treated differently than his female co-workers could give rise to a plausible claim of discrimination, based on his termination. Employers should not ask whether the person is part of a protected group when making an employment decision, according to Segal. “Everyone falls within a protected group,” he said. The best practice is to ensure consistency. 

Citing Justice Clarence Thomas’ opinion in the Harvard decision, Olson said that it’s fine to take into account an individual’s personal struggles or achievements. These may include factors such as being the first college graduate in their family or coming from a certain socioeconomic background. 

Employment leadership programs “may disproportionately favor certain protected groups, but you’re looking at an individual status, not in that group, but with respect to that hardship or obstacle,” she said. 

As an example, a caregiving benefit may disproportionately assist women because of historical and cultural factors. However, that would not qualify as unlawful discrimination if the employer “didn’t select entry into that group based on sex,” Olson said. That is to say, if men are allowed the same benefit — regardless of whether they choose to use it — there has been no bias on the employer’s part. 

Employers who use workforce analytics may wonder whether Ames invalidates the practice. Olson explained that collecting such data is OK as long as it is appropriately used. 

“Using [analytics] to understand representation benchmarks” is perfectly acceptable, such as when employers want “to identify gaps” in their outreach, Olson said. “It is lawful to set aspiration goals to broaden outreach,” but employers need to focus on providing opportunities, not achieving a predetermined demographic outcome. 

Employers should also be wary of quotas, Olson cautioned. Even a general statement like “We aim to promote more women this year” could be cited as evidence of bias. According to Olson, the best practice is to ask why a goal is being set and be able to explain it based on business needs. 

There is risk in saying “the goal is to increase diversity,” Segal said. 

Such statements are not necessarily unlawful, but they may potentially be evidence of discrimination down the road because they may be used to suggest that the employer was making decisions solely based on a person’s protected characteristic — such as sex, race, religion, skin color, or national origin. Employers should avoid saying they want to reach out to diverse applicant pools to increase diversity as an aim of its own, he said. Rather, employers should say they want to reach out to those diverse applicant pools to ensure they get the best talent.