After Identity: Reverse Discrimination, Anti-Essentialism, and the Future of Title VII

Authors

Maayan Sudai, University of HaifaFollow
Lihi Yona, University of HaifaFollow

ORCID (Links to author’s additional scholarship at ORCID.org)

Mayaan Sudai: https://orcid.org/0000-0003-0437-9751

Lihi Yona: https://orcid.org/0000-0003-3026-2231

Abstract

This Article argues that the Supreme Court’s unanimous decision in Ames v. Ohio Department of Youth Services marks a turning point in Title VII’s long-standing struggle with identity. By striking down the “background circumstances” rule, a doctrine that required majority-group plaintiffs to meet a heightened evidentiary burden, the Court appeared at first glance to reaffirm its steady march toward strict anticlassification. We offer a different reading. We contend that Ames gestures toward a third, overlooked normative framework within antidiscrimination law: anti-essentialism. This framework, rooted in feminist, critical race, and queer theory, rejects both the rigidity of anticlassification and the categorical commitments of antisubordination. It locates the harm of discrimination not in the mere use of identity categories, nor in group-based hierarchies alone, but in the reduction of complex individuals into essentialized traits and scripts.

Drawing on the full doctrinal history of the background circumstances rule and its decades-long circuit split, we show that courts on both sides of the divide relied on essentialist assumptions about identity, assumptions that Ames quietly but decisively disavowed. We further demonstrate that the demise of the rule destabilizes the McDonnell Douglas framework itself, whose technocratic structure rests on similarly essentialist premises about how discrimination operates. As Title VII enters a post-Ames era, we argue that anti-essentialism offers a promising path forward. It provides a way to attend to structural power dynamics without reifying identity categories, while also bridging the deepening ideological divides between anti-classification and antisubordination. The Article concludes by calling for the development of anti-essentialism as a doctrinal and normative foundation for Title VII as a whole.

Recommended Citation

Maayan Sudai & Lihi Yona, After Identity: Reverse Discrimination, Anti-Essentialism, and the Future of Title VII, 78 SMU L. Rev. 881 (2025)