Employment Law Update: Supreme Court Hears Argument on Reverse Discrimination Claim with Implications for DEI
Date: March 7, 2025
The core issue before the Justices is whether the Sixth Circuit Court of Appeals was imposing a higher standard on the plaintiff, Marlean Ames, because she was a heterosexual alleging that the Ohio Department of Youth Standards (ODYS) discriminated against her by denying her a promotion in favor of a less qualified, gay male employee. The Sixth Circuit upheld the dismissal of her claim, stating that she failed to present any evidence of background evidence to support her claims, beyond her prima facie showing, noting in particular that she is a member of the majority (heterosexual).
Ms. Ames argued that the case presents the straightforward question of whether the lower courts were requiring a higher threshold of evidence for majority group plaintiffs. Perhaps realizing the difficulty of taking a contrary position, the ODYS conceded that there could not be a separate standard for parties bringing discrimination claims where the claimant is in a majority group. Instead, the defendants argued that the “background evidence” noted by the Sixth Circuit was no different than the standard previously articulated by the Supreme Court, arguing that this requirement was, instead, just a method of analysis to determine whether there was any evidence to support the claims of discrimination. In further support, the ODYS noted that there was no evidence that anyone had knowledge of Ms. Ames’ sexual orientation.
Based on the oral argument, things do not look promising for the ODYS, and it seems likely that some kind of ruling will issue that confirms that majority-group plaintiffs do not bear a higher burden in discrimination claims, and that all that is required is sufficient evidence to raise a question of fact on that issue for a jury to decide. How far the Court goes, however, in clarifying the legal standard remains to be seen. This latter question will be relevant not only to individual plaintiffs, but also, potentially to the federal government as they pursue administration priorities in challenging DEI programs.
As noted in previous blog posts, memoranda from the Department of Justice, the Office of Personnel Management and the Department of Education have specifically focused on DEI policies that preference certain racial groups, argue that certain groups bear moral burdens others do not, or programs that exclude or limit participation based on any protected characteristics. Lower court decisions on whether these types of programs provide evidence to support an individual discrimination claim are a mixed bag. Depending on how the Supreme Court rules in the Ames case, however, and the extent to which the language of the decision picks up the various arguments being advanced by the current administration, such cases may see real growth.
Whiteford’s Labor & Employment law practice group is actively monitoring these cases and developments in discrimination law and DEI. We remain available to speak with clients regarding their concerns regarding these areas, or other matters bearing on the management of their personnel and their businesses.
The information contained here is not intended to provide legal advice or opinion and should not be acted upon without consulting an attorney. Counsel should not be selected based on advertising materials, and we recommend that you conduct further investigation when seeking legal representation.