The Big-Picture: Perfect Timing at the Supreme Court
The Supreme Court heard arguments on Wednesday, February 25, in the case of Marlean Ames, a straight woman from Ohio who alleged discrimination on the basis of her sexual orientation under Title VII of the Civil Rights Act after her employer allegedly denied her a promotion, while promoting a purportedly lesser qualified gay coworker, and also demoted her, again replacing her with a purportedly lesser qualified gay coworker.
The narrow question presented in Ames v. Ohio Department of Youth Services is whether plaintiffs in majority demographic groups alleging “reverse discrimination” must meet heightened pleading standards in employment discrimination claims under Title VII. The circuits are split on this question. Five circuit courts apply the “background circumstances” test for reverse discrimination claims, while the other seven circuit courts expressly do not.
As luck would have it, the case was argued against the backdrop of President Trump’s escalating focus on “illegal DEI.” Ames is also the first Supreme Court case to examine reverse discrimination since Students for Fair Admissions v. Harvard, 600 U.S. 181 (2023), in which the Court held that college race-based admissions programs violate the Equal Protection Clause of the Fourteenth Amendment.
For companies considering whether to adjust their DEI programs in response to the Trump Administration’s initiatives, last week’s arguments may help predict the state of the law in a few months’ time, and what may then qualify as “illegal DEI.”
The Specifics: Ames v. Ohio Department of Youth Services
In 2023, a federal district court in Ohio rejected Ames’s sex-based employment discrimination claims, holding that Ames failed to meet the heightened pleading requirement for Title VII plaintiffs belonging to a majority group. Ames v. Dep’t of Youth Servs., 2023 WL 2539214, at *9–10 (S.D. Ohio Mar. 16, 2023).
- The court held that plaintiffs alleging reverse discrimination in the employment context must show “background circumstances” sufficient to demonstrate that an employer “is that unusual employer who discriminates against the majority.” Id. at *7 (quoting Parker v. Balt. & Ohio R.R. Co., 652 F.2d 1012, 1017 (D.C. Cir. 1981)).
- However, the court found that Ames failed to show sufficient background circumstances by “neglect[ing] to provide any statistical evidence of past reverse discrimination, any indication of policies or procedures indicating organizational preferences for minority applicants, or any suggestion that the decisionmakers behind her demotion (and the subsequent promotion of [her replacement] were members of the LGBTI community.” Id. at *9.
- In granting her employer’s motion for summary judgment, the court concluded that Ames’s sole support provided to meet this threshold requirement—that she has allegedly suffered two adverse employment decisions based on her sex—is “clearly insufficient” to establish the background circumstances necessary to “carry her burden of making out a prima facie case of reverse discrimination.” Id.
Ames appealed to the Sixth Circuit. A Sixth Circuit panel unanimously affirmed the district court’s decision to grant summary judgment because Ames failed to make the necessary showing of background circumstances. Ames v. Ohio Dep’t of Youth Servs., 87 F.4th 822, 824 (6th Cir. 2023).
- The judges agreed with the district court’s findings that Ames did not provide “evidence that a member of the relevant minority group (here, gay people) made the employment decision at issue” or “statistical evidence showing a pattern of discrimination.” Id. at 825.
- The court concluded that Ames’s “only evidence of a pattern of discrimination against heterosexuals is her own demotion and denial of the [promotion],” and “a plaintiff cannot point to her own experience to establish a pattern of discrimination.” Id.
- However, Judge Kethledge penned a concurrence criticizing the background circumstances rule against which Ames’s claims were evaluated, asserting that “[i]f the statute had prescribed this rule expressly, we would subject it to struct scrutiny[.]” Id. at 827 (Kethledge, J., concurring).
In her appeal to the Supreme Court, Ames argued that the background circumstances requirement unfairly imposes a higher burden on her, as a heterosexual woman, to provide more evidence than plaintiffs in a minority group would have to under the same statute. Notably, the Biden Department of Justice filed an amicus brief supporting the argument to get rid of the background circumstances rule, arguing that the heightened requirement lacks a basis in Title VII.
At last Wednesday’s oral argument, the Justices asked lawyers for both sides about the implications of the heightened pleading requirement for plaintiffs from majority groups. Justice Gorsuch noted during argument that the Justices appeared to be in “radical agreement” with each other and with Ames’s argument that Title VII does not require her to meet a higher bar just because she is a member of a majority group.
The relative brevity of oral argument (ending a rare five minutes early!) and sentiments expressed by the Justices during argument appear to signal that the Court will likely toss out the background circumstances rule and send the case back to district court to allow Ames’s “reverse discrimination” claim to clear the threshold hurdle, using the same standard applicable to discrimination claims brought by members of a minority group.
The Context: Broader Implications on DEI Practices
Ames does not challenge her employer’s DEI programming; so why is this case nonetheless relevant to the emerging debate over corporate DEI?
To date, reverse discrimination claims attacking corporate DEI programs have largely been unsuccessful. But if the Supreme Court rules as expected, employees in all circuits will be permitted to plead reverse discrimination in the same manner as all other employment discrimination claims, which may lead to an increase in the number of such claims. And even though Ames involves discrimination on the basis of sex and sexual orientation, its decision will likely apply to reverse discrimination claims brought on the basis of race, color, religion, and national origin.
Indeed, the decision in Ames appears poised to resonate beyond the confines of Title VII pleading standards. It will join the Court’s recent anti-discrimination canon—from Shelby v. Holder, to Bostock v. Clayton County, to Students For Fair Admissions v. Harvard—in reshaping the law and narrative around corporate DEI programming. Assuming the Court rules by the end of its term, the opinion will land just weeks after the Trump Administration finalizes its holistic strategy to “deter” “illegal DEI” in the private sector, and could add to that narrative. See Ending Illegal Discrimination And Restoring Merit-Based Opportunity – The White House.
As we wrote about in a recent blog post, beginning on the first day of his second term in office, President Trump ordered aggressive and intensified scrutiny of workplace DEI efforts. He has directed federal agencies, including the Department of Justice, which followed with its own memorandum, to target “illegal DEI.” The Administration’s broad initiative has sparked questions across every sector and jurisdiction over what common DEI programs and policies could be targeted.
Indeed, that ambiguity was so significant that a federal district court in Maryland ruled that the President’s DEI directives were too vague to pass muster under the First and Fifth Amendments. On Friday, February 21, the court issued a nationwide preliminary injunction halting the enforcement of key aspects of the DEI Executive Orders. See Nat’l Assn. of Diversity Officers in Higher Educ. et al. v. Trump et al., No. 25-cv-00333 (D. Md. Feb. 21, 2025). (Importantly, the court did not enjoin DOJ from “engaging in investigation,” or developing its report identifying “egregious” DEI practitioners and targets for investigation. And indeed, other agencies are prioritizing DEI investigations.)
Given the current backdrop, the Supreme Court’s decision in Ames, or any concurring or dissenting opinions, may speak to this moment, at least implicitly. For example, one or more justices may take the opportunity to address arguments put forward by amici, which include several organizations that would like to see the Court address a broader narrative that is critical of DEI. The Court’s decision in Students For Fair Admissions v. Harvard opened the door to a new era of anti-discrimination litigation targeting diversity programs; Ames may see the Court embrace it.
The Takeaway: Companies Should Evaluate Potential Risk
In light of these recent events, organizations and institutions with DEI programs are evaluating their practices and initiatives to determine what, if anything, they need to address to mitigate potential legal risks and exposure. This includes conducting thorough reviews of their DEI policies, documenting the business rationales behind their initiatives, and making sure that programming is aimed at reducing discrimination against all employees, which is consistent with Title VII and can be defended on that ground in the future.
As the landscape of DEI continues to evolve, our cross-border, multidisciplinary team at Freshfields is available to help clients work through these complex and developing issues.
