A wave of anti-DEI lawsuits, executive orders, and social media movements has swept the country. On Feb. 26, 2025, the United States Supreme Court will hear Ames v. Ohio Department of Youth Services, a case that directly impacts the growing anti-DEI "reverse discrimination" movement.
In deciding the case, the court is expected to clarify the requirements for a plaintiff to establish a prima facie case of reverse discrimination and may very well seal the fate of DEI in an already changing world.
'Ames'
For a plaintiff to establish a claim of discrimination using indirect evidence under Title VII, McDonnell-Douglas Corp. v. Greene, 411 U.S. 792 (1973) establishes that a plaintiff must first prove: (1) they belong to a protected class; (2) they applied for and were qualified for an available position; (3) their employer rejected their application for the position; and (4) their employer kept the position open and continued to seek applicants with the same qualifications as the plaintiff. If the plaintiff can establish a prima facie claim, the burden then shifts to the employer to show a non-discriminatory reason for its decision; assuming they do, the burden shifts once more to the plaintiff to prove the employer's reason was pretextual for true discrimination.
But some federal appellate courts have added another layer to the four-factor McDonnell-Douglas test when a plaintiff alleges reverse discrimination: the background circumstances rule. Under the rule, if the plaintiff belongs to a "majority" group (e.g., heterosexual individuals), they must also show "background circumstances" to "support the suspicion" that their employer is the unusual employer that discriminates against the majority.
Courts in the D.C. Circuit, Sixth Circuit, Seventh Circuit, Eighth Circuit, and Tenth Circuit apply the heightened requirement. The Third Circuit and Eleventh Circuit have rejected the rule, and the balance of the circuit courts have not yet applied the rule. Ames, 87 F.4th at 827–28 (Kethledge, J., concurring). In Ames,the Supreme Court likely will resolve the circuit split.
Ames is a heterosexual woman who sued her employer, alleging she was not selected for a promotion in favor of a gay man and then was terminated so she could be replaced by a gay woman. Her supervisor was a gay woman but the two more senior hiring decisionmakers were both heterosexual. Ames claimed her employer discriminated against her based on her sexual orientation and gender.
The trial court ruled in the employer's favor and the Sixth
Circuit Court of Appeals affirmed, holding that Ames could not
prove a prima facie case of discrimination based on her sexual
orientation because she could not meet the background circumstances
requirement.
Under the law in the Sixth Circuit, plaintiffs usually make this
showing with evidence that: (1) a "member of the relevant
minority group (here, gay people) made the employment
decision" or (2) the employer has a pattern of discrimination
against members of the minority. Ames, 87 F.4th at
825.
The court found Ames had failed to prove these circumstances because she admitted that the two relevant decisionmakers were heterosexual and she presented only her own situation as evidence of a pattern of discrimination. Id. The court reiterated that plaintiffs must show statistical evidence of discrimination and cannot point to their own experience. Id.
The Supreme Court granted certiorari to determine whether "a majority group plaintiff must show 'background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.'" If the Court rejects the "background circumstances" rule, it will be easier for a plaintiff to bring and prove a claim of reverse discrimination. This will only add fuel to the fire by anti-DEI advocates, as the Court's decision in Students for Fair Admissions, Inc. v. Harvard, 600 U.S. 181 (2023) did a few years ago.
The Status of DEI in 2025
The court will not decide Ames in a vacuum; employers already are under pressure from a series of recent anti-DEI reforms coming from the executive branch, private litigants, advocacy groups, social media influencers, consumers, and shareholders.
Executive Branch Actions
Within the first two days of his second term, President Trump immediately set his sights on dismantling DEI programs. He issued two Executive Orders ("EOs") targeting diversity initiatives: (1) Ending Radical and Wasteful Government DEI Programs and Preferencing and (2) Ending Illegal Discrimination and Restoring Merit-Based Opportunity.
The first EO targets federal agencies and directs the Director of the Office of Management and Budget to terminate "all 'diversity, equity, inclusion, and accessibility' (DEIA) mandates, policies, programs, preferences, and activities in the Federal Government, under whatever name they appear." The OMB Director acted quickly and placed all federal employees in DEI offices on paid leave within two days of the Order.
The second EO extends beyond federal actors and targets private entities in several notable ways. First, the "Ending Illegal Discrimination and Restoring Merit-Based Opportunity" Order eliminates Executive Order 11246, which has been in place since 1965 and prohibited discrimination by federal contractors and required affirmative action to ensure equal employment opportunity. Among other requirements, it required federal contractors with at least 50 employees and a single contract of $50,000 or more to develop an affirmative action program.
In the second EO, President Trump also ordered the Attorney General to work with agency heads over 120 days to put together a report with "recommendations for enforcing Federal civil-rights laws" and encouraging "the private sector to end illegal discrimination and preferences, including DEI."
The Attorney General's report must include, among other things, "a plan of specific steps or measures to deter DEI programs or principles" and names of the "most egregious and discriminatory DEI practitioners in each sector of concern." The president ordered each agency to identify "up to nine potential civil compliance investigations" of public corporations, large non-profits, "foundations with assets of $500 million or more, State and local bar and medical associations, and institutions of higher education with endowments over $1 billion."
Meanwhile, state executive branch actors have been busy too. Following the Students for Fair Admissions decision, a group of Republican attorneys general issued a letter warning public companies against "race-based contracting practices" and "explicit racial quotas and preferences" in employment decision-making.
More recently, eleven AGs, led by Texas, wrote another letter, this time to various Wall Street firms. The AGs requested specific information and explanations about the companies' DEI commitments and threatened to sue over those commitments. On the other hand, a group of AGs from blue states issued a letter to Walmart warning it not to scale back its initiatives too far in response to anti-DEI agitators.
In 2024, the State of Missouri sued IBM, alleging the company set specific percentage goals for underrepresented groups in its workforce and tied executive compensation to 1% annual progress on those goals.
Private Litigants and Advocacy Groups
The President and AGs are not the only ones challenging private sector DEI initiatives. Over the past few years, litigants have brought more discrimination claims challenging hiring "quotas," fellowship and internship programs, grant funding, DEI trainings, and Board diversity policies.
Groups like the American Alliance for Equal Rights are challenging training and fellowship programs based on race-based eligibility criteria. For example, the Alliance filed a charge against Merck challenging the company's 12-month diversity leadership program, which allegedly required applicants to identify as Black, Latino, or Native American.
The Alliance also challenged several law firms over their 1L diversity summer associate programs. Most firms responded by voluntarily removing references to race and gender from their program eligibility criteria. Another advocacy group, Do No Harm, sued Pfizer for offering special internship and post-grad scholarships for certain minorities but excluded Asian Americans and Caucasians. Do No Harm v. Pfizer, Inc.,—F.4th—, 2025 WL 63404 (2d Cir. Jan. 10, 2025).
Anti-DEI litigants have also challenged grant funding programs under 42 U.S.C. § 1981, a reconstruction-era statute. In American Alliance for Equal Rights v. Fearless Fund Management, LLC, 103 F.4th 765 (11th Cir. 2024), the Eleventh Circuit Court of Appeals reversed the district court's denial of a preliminary injunction against a venture capital fund over its grant contest for Black-women-founded companies.
The appellate court found that the contest likely violated the non-Black plaintiffs' rights under a provision of the 1866 civil rights act that states: "all persons within...the United States shall have the same right . . . to make and enforce contracts...as is enjoyed by white citizens." Since the Fearless Fund decision, litigants have challenged other grant programs by companies such as McDonalds.
Reverse discrimination litigants have also targeted their employers' workforce diversity goals, DEI trainings, and broader diversity initiatives. Examples include:
- Duvall v. Novant Health, Inc., in which a jury awarded a white male executive $10M in punitive damages for his reverse discrimination claim that he supported by pointing to the company's "widescale D&I initiative" 5 F.4th 778 (4th Cir. 2024) (finding evidence sufficient for the verdict but reversing the punitive damages award);
- Bradley v. Gannett, No. 1:23-cv-1100, 2024 WL 3905817 (E.D. Va. Aug. 20, 2024) (dismissing former employees' reverse discrimination claim because company's diversity goals were merely aspirational goals, not quotas); and
- Young v. Colo. Dep't of Corr., 94 F.4th 1242 (10th Cir. 2024) (upholding dismissal of employee's Title VII case premised on inclusion training but signaling that language "echoed racist views" and might be grounds for a claim if training was repeated or employee showed proof of racial animus after training).
Of course, private groups have the option of raising First
Amendment defenses to certain claims. In Saadeh v. New Jersey State Bar
Association, No. A-2201-22, 2024 WL 5182533 (N.J. Super.
Ct. App. Div. Dec. 20, 2024), the New Jersey Appellate Division
considered a claim by a Palestinian and Muslim lawyer who alleged
the Bar Association's policy of designating certain Board and
committee seats for members of specific underrepresented groups
violated the State's Law Against Discrimination.
The appellate court held that requiring the Bar Association to change its program would violate its First Amendment right of expressive association; this case is now headed to the New Jersey Supreme Court.
Social Media Influencers, Consumers, and Shareholders
While litigants take companies to court, some anti-DEI advocates are battling with corporations online. Robby Starbuck, a social media influencer and podcaster, has crusaded against major corporations with diversity commitments. He and others have successfully used social media campaigns to pressure companies into rolling back DEI efforts. In the past six months, more than a dozen major companies like Walmart, Meta, Lowe's, and McDonalds have publicly announced actions to modify or eliminate their DEI commitments.
On the tail of this social movement, the National Center for Public Policy Research (NCPPR) has tried to force corporations to change through shareholder actions and proposals. The group has challenged companies like Starbucks, Costco, and Apple. But a court struck down the group's lawsuit alleging Starbucks's leaders violated their fiduciary duties by implementing DEI policies. Nat'l Center for Pub. Pol'y Rsch. v. Schultz, No. 2:22-267, 2023 WL 5945958, at *5 (E.D. Wash. Sept. 11, 2023).
And Costco's Board doubled down on the company's DEI commitments in response to NCPPR; it recommended shareholders vote "no" on the group's proposal to evaluate and report on the risks of maintaining DEI goals. Ninety-eight percent of Costco's voting shareholders agreed with the Board, issuing a resounding rejection to NCPPR's proposal. Apple's Board has taken a similar approach, recommending its shareholders vote against the proposal to end its diversity programs.
What's Next?
At a time when principles of diversity, equity and inclusion are under siege, the Supreme Court will hear and decide Ames. Just as Students for Fair Admission changed the DEI landscape in education, Ames is likely to usher in further change for employers.
As businesses navigate their DEI practices, many are moving to protect themselves against a future onslaught of reverse discrimination claims. Crafting diversity goals as aspirational, rather than as formal quotas; using objective selection criteria for employment decisions; avoiding participation criteria tied to protected characteristics; and focusing on inclusivity are all ways that employers can minimize their legal risk.
Originally published by New York Law Journal.
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