By Hunter Ransom
Recent industry studies show U.S. employers increasingly worried about litigation over their diversity, equity, and inclusion (“DEI”) policies. Some of those concerns include suits from employees alleging “reverse” discrimination (i.e., claims of employment discrimination by Caucasians, males, heterosexuals, non-disabled individuals, etc. in favor of minorities), likely based in part on the federal government’s shift in focus to “discrimination related to DEI.” The Supreme Court may have validated that concern last week in Ames v. Ohio Department of Youth Services, 605 U.S. ___ (2025).
Ames involves a claim against a state agency by a straight woman who was (1) passed over for a promotion in favor of a lesbian woman, and (2) demoted from her role as a program administrator in favor of a gay man. The United States District Court for the Southern District of Ohio granted summary judgment in favor of the agency, and the Sixth Circuit affirmed.
On appeal, the Sixth Circuit held Ames failed to show a requisite prima facie case because she failed to also show “background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.” Ordinarily, a so-called “prima facie case” of employment discrimination requires “enough evidence to support an inference of discrimination.” In other words, the Sixth Circuit’s opinion seemingly required non-minorities (such as Caucasians, heterosexuals, etc.) to show such background circumstances “in addition to the usual ones for establishing a prima facie case.”
The Supreme Court unanimously disagreed, holding Title VII does not support the additional “background circumstances” requirement on majority plaintiffs or the “heightened evidentiary standard” that requirement imposes. Justice Ketanji Brown-Jackson, writing for the Court, specifically noted that Title VII “draws no distinctions between majority-group plaintiffs and minority-group plaintiffs.” Ames’s discrimination lawsuit will go back to the lower courts “for application of the proper prima facie standard.”
The Supreme Court’s decision, met with mixed reactions, split across political and industrial lines. On one hand, the Court’s decision seemingly offered further support to the recent wave of anti-DEI policies. On the other hand, the Court’s decision could pave the way for an increase in employment discrimination litigation.
Based on the Supreme Court’s clarified standard, employers should be mindful of federal, state, and local standards for employment discrimination and evaluate their DEI policies. In the meantime, Brunini’s employment practice group will monitor Ames’s impact on new employment-discrimination cases.