Supreme Court Didn't Make DEI Illegal In Ames Ruling, Lawyers Explain

Forbes

a day ago

The U.S. Supreme Court's decision in Ames v. Ohio Department of Youth Services lowered the initial ... More hurdle for pursuing reverse discrimination claims under Title VII in some states, but legal experts say that corporate DEI initiatives remain legal.
As predicted, the U.S. Supreme Court's decision in Ames v. Ohio Department of Youth Services has fueled assertions of a lethal strike against corporate diversity, equity and inclusion. But legal experts on DEI warn: not so fast.
Ames is a 'reverse discrimination' case, in which a member of a majority group alleges discrimination in favor of a minority group. Although Ames did not involve a DEI initiative, reverse discrimination claims have become the go-to legal tool for challenging corporate DEI programs. So when the Supreme Court ruled in favor of the employee in Ames, DEI critics claimed victory.
But legal experts say that characterizing Ames as an anti-DEI ruling is more rhetoric than reality.
Although the Supreme Court revived Ames's case, the decision only addressed a narrow issue about the test that some states used for initial review of reverse discrimination claims. Employment law experts explain that the Ames decision does not change the legality of DEI programs.
Marlean Ames, a heterosexual woman, was an administrator at a youth services agency. Ames applied for a promotion to become a Bureau Chief. She did not receive that job and was instead demoted. The employer hired a gay man to fill her former administrator position and selected a lesbian woman for the Bureau Chief job.
Ames filed a federal lawsuit claiming that her employer discriminated against her because she is heterosexual in violation of Title VII of the Civil Rights Act of 1964. Title VII prohibits covered employers from discriminating against employees because of race, color, religion, sex, or national origin. The Supreme Court held in the 2020 case of Bostock v. Clayton County that Title VII also protects sexual orientation and gender identity.
Although sexual orientation is a protected status, the lower courts dismissed Ames's Title VII lawsuit for insufficient evidence of discrimination.
All employees who file Title VII claims must overcome an initial hurdle for their lawsuit to move forward for review. Because Ames was claiming reverse discrimination, the court in her jurisdiction required an extra showing of 'background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.'
Ames could not meet the 'background circumstances' requirement to move her case forward. The decision makers who denied Ames a promotion and demoted her were not gay. And there was no evidence that her employer had a pattern of discriminating against heterosexual employees. So the lower courts dismissed her claim for lack of evidence of discrimination.
Ames appealed to the U.S. Supreme Court. Five of the federal circuits (covering about 20 states) used the extra 'background circumstances' requirement for the initial review of reverse discrimination claims, while seven federal circuits (covering about 30 states) did not. The Supreme Court agreed to review Ames's case to resolve this conflict on the standard for initiating a reverse discrimination claim.
On June 5, 2025, the Supreme Court held in a unanimous decision that lower courts should not use the 'background circumstances' requirement in their initial assessment of reverse discrimination claims. The Court held that all Title VII claims—whether brought by a member of a majority or minority group—should be reviewed using the same standard.
In the Ames decision, the Supreme Court also reinforced its prior ruling in Bostock that Title VII prohibits sexual orientation discrimination. 'The case reaffirms the coverage that exists for all LGBT individuals under Title VII today that the EEOC should be actively protecting,' said Chai R. Feldblum, former EEOC Commissioner, via email.
Employment law experts largely agree that the Supreme Court correctly interpreted Title VII to apply the same standard to all employees. 'Our anti-discrimination laws protect everyone,' said Jenny Yang, former EEOC Chair and partner at Outten & Golden, via email. 'Title VII does not provide a basis to apply a heightened standard to certain individuals based on their race or gender.'
The Supreme Court's decision in Ames was unsurprising in part because it is a narrow, technical ruling, rather than a change in law. 'The Ames decision did not create a sea-change in the law,' said Victoria Slade, counsel with Davis Wright Tremaine LLP, via email.
'It was already illegal to discriminate against people in majority groups—the Supreme Court decided only that lower courts should not require plaintiffs in majority groups to prove an extra factor in order to show they have enough evidence to get to trial,' said Slade. 'The fact that liberal Justice Jackson authored the decision, and that it was 9-0, is a good indication that the result is not controversial.'
The ruling does not mean that Ames herself has proved that her employer discriminated against her because she is heterosexual. The ruling also does not mean that Ames has won—or will win—her reverse discrimination claim.
Instead, the Supreme Court sent Ames's case back to the lower court to reconsider whether her case could meet the initial step to continue without using the 'background circumstances' requirement.
If the lower court allows Ames's case to move forward, the employer may still show that its hiring decisions were based on legitimate reasons unrelated to Ames's heterosexual orientation. And Ames could still lose her reverse discrimination claim.
Ames did not challenge a DEI initiative. Ames just argued that her employer individually discriminated against her because she is heterosexual by selecting gay workers for the two positions she desired.
So why are DEI opponents claiming that Ames is a 'huge blow' to corporate DEI?
The Ames decision matters because members of majority groups have increasingly used reverse discrimination claims to challenge DEI initiatives, particularly on the basis of race, sex and national origin. To date, reverse discrimination claims targeting corporate DEI programs have been largely unsuccessful.
DEI critics assert that by lowering the legal standard for initiating reverse discrimination claims in Ames, the Supreme Court effectively made corporate DEI illegal by making it easier for members of majority groups to sue under Title VII.
Employment law experts disagree for three reasons.
First, the Supreme Court's decision to eliminate the 'background circumstances' requirement in reverse discrimination claims only affects cases in the five federal circuits that previously used that evidentiary standard.
The other seven federal circuits had never adopted the extra 'background circumstances' requirement for Title VII reverse discrimination claims. So the Ames decision has no impact at all in about 30 states.
'The 'background circumstances' test was only the law in certain jurisdictions,' said Slade. 'For the rest of us, there has been no change at all.'
Second, the 'background circumstances' requirement only relates to the initial showing that employees must make to have their reverse discrimination cases move forward for review. The Supreme Court referred to this as just 'step one' in a multi-step review process.
As with all Title VII claims, employers can still defend the case by showing a legitimate, nondiscriminatory reason for the employment decision.
Ames does not change the employee's ultimate burden to actually prove that the employer acted with a discriminatory motive. Ames herself may lose her reverse discrimination claim if there are legitimate reasons for her rejected promotion and her demotion unrelated to her heterosexual orientation.
'The Ames decision simply ensures that all plaintiffs—regardless of majority or minority status—are evaluated under the same framework,' said Alyesha Asghar, shareholder at Littler, via email. Employers can still 'show that employment decisions were based on legitimate, non-discriminatory reasons,' or use 'other established defenses.'
Legal experts predict that the Ames decision may increase the number of reverse discrimination claims attempting to challenge DEI initiatives. Ames may also reduce the number of early case dismissals by making it easier for employees to get past 'step one' in the review process.
That may require employers to spend more time and money defending reverse discrimination claims. But more claims does not mean an increased likelihood of success.
'Ames may open the door a bit wider for reverse discrimination claims to proceed past early stages,' said Asghar, 'but it doesn't change the legal standards that determine whether those claims ultimately succeed.'
'Most federal circuits already did not require the 'background circumstances' hurdle, and there hasn't been a flood of successful reverse discrimination claims in those jurisdictions,' said Asghar. 'That suggests we're unlikely to see a major uptick in successful claims even in the few circuits where the standard has now changed.'
Third, and most importantly, the Ames decision eliminating the 'background circumstances' test used in some states does not change Title VII law on the legality of DEI initiatives. Ames only impacts how much initial evidence employees must offer to gain full review of their reverse discrimination claims.
'This decision has no effect at all on the DEI landscape, except to the extent it emboldens critics,' said Slade. 'It certainly does not change the law that applies to DEI programs.'
While Ames 'clarified that 'reverse' discrimination claims should be evaluated under the same legal standards as any other Title VII claim,' said Asghar, 'the decision did not ban DEI programs or change what counts as discrimination under Title VII.'
'This case should not be viewed as some sort of death-knell for DEI,' agreed Slade. 'There are numerous cases where courts have found that common DEI programs do not discriminate against majority group plaintiffs, and they have done so under the standard discrimination test, not relying on the 'background circumstances' factor. Those cases are still good law.'
Two former EEOC officials agree with this analysis. 'Anyone who thinks that this opinion will make it harder for employers to engage in DEI activities is misreading both the case and the law,' said Feldblum. 'As long as employers use the many legal means available for increasing diversity and inclusion, as described in the EEO Leadership Group Statement on DEI, this opinion changes nothing in that regard.'
'This decision does not impact the law governing employers' diversity, equity, and inclusion programs,' said Yang. 'As highlighted in our resource document, there are many strategies for employers to advance equal opportunity and remove barriers to opportunity for all that do not apply different standards to workers based on race, gender or other protected bases.'
Feldblum and Yang are two of ten former EEOC officials who authored an April 3, 2025 Statement on DEI to clarify the legality of DEI practices.
The statement explains that standard DEI practices that remain legal include using objective evaluation criteria, educating decision makers about the sources of bias, and conducting workplace training on bias reduction, harassment prevention, allyship and workplace inclusion. These practices are often necessary to ensure that employers are not discriminating in hiring, performance reviews and promotion decisions.
It remains legal for employers to broaden their recruiting outreach to attract more diverse candidates, and to collect workforce data to audit diversity outcomes, according to the ten former EEOC officials.
The Ames decision also does not affect the legality of employee resource groups, including affinity groups that focus on race, gender, ethnicity, religion, veteran status, sexual orientation, gender identity, or disability. According to the ten experts, as long as employers ensure that ERGs are open to all employees who support the group's objectives, they do not violate Title VII.
In contrast, using a protected status for a hiring quota or as the basis for a tangible workplace advantage has always been unlawful under Title VII. That also has not changed under Ames. But equating those types of practices with 'DEI' is a misnomer.
As Asghar explained, 'employers can still defend well-designed DEI initiatives as nondiscriminatory—as long as those initiatives do not involve exclusion or preferences based on protected characteristics like race, sex, or sexual orientation.'