Reverse Discrimination or Red Herring? The Ames Case and the Future of DEI
"Diversity is not about how we differ. Diversity is about embracing one another’s uniqueness." — Ola Joseph
The U.S. Supreme Court’s impending decision in Ames v. Ohio Department of Youth Services is more than a legal debate; it’s a litmus test for our nation’s commitment to building equitable workplaces. Scheduled for oral arguments on February 26, 2025, with a decision expected by the end of June, the Ames case revolves around a reverse discrimination claim by Marlean Ames. But let’s not be fooled: this case is not an isolated dispute. It is part of a larger, coordinated effort to use the conservative Supreme Court to accelerate the pushback on Diversity, Equity, and Inclusion (DEI) programs, as well as broader civil rights protections (see citations and Amicus Briefs below). This multifaceted strategy—spanning court cases, attacks on corporations, and public slander of progressive leaders—seeks to exploit cases like Ames to undermine progress. By entertaining this case, the Court risks becoming a tool to stymie efforts to build a more inclusive and equitable society.
Understanding the Case: A Disguise for Broader Attacks on DEI
At its core, Ames’s case claims that she, a heterosexual employee, was discriminated against when her employer promoted LGBTQ individuals over her for two key positions. The lower courts dismissed her Title VII claim due to insufficient evidence, citing a lack of “background circumstances”—a legal test required in some jurisdictions for reverse discrimination cases. This test requires plaintiffs from historically dominant groups to show that their employer is the rare type that discriminates against the majority.
Ames failed to meet this evidentiary threshold. The decision-makers in her case were not LGBTQ, and no evidence suggested a broader pattern of discrimination against heterosexual employees. Nevertheless, the Supreme Court’s decision to hear the case has emboldened critics of DEI to view this as an opportunity to dismantle workplace diversity efforts under the banner of reverse discrimination.
The Threat to DEI Programs
Although Ames’s case does not directly challenge DEI initiatives, the implications are unmistakable. If the Court strikes down the “background circumstances” requirement, it will significantly lower the bar for reverse discrimination claims. Critics of DEI will seize this opportunity to weaponize such claims against diversity programs, portraying them as unfairly privileging minority groups at the expense of the majority. This strategy is eerily reminiscent of the rhetoric used to attack affirmative action in the wake of SFFA v. Harvard College (2023), where DEI programs were erroneously labeled as “illegal” by groups like America First Legal.
While legal experts correctly argue that well-designed DEI programs comply with Title VII, the elimination of the “background circumstances” test will invite a deluge of frivolous lawsuits aimed at intimidating employers into abandoning diversity initiatives. This chilling effect could stymie progress in creating equitable workplaces and reinforce systemic inequities under the pretense of protecting fairness.
The Real Motive: Marginalizing DEI
Let’s not mince words—the attacks on DEI are part of a broader effort to re-entrench privilege under the guise of fairness. These attacks are designed to perpetuate the status quo by framing equity initiatives as discriminatory against majority groups. The irony is staggering: DEI programs exist to dismantle barriers and create equal opportunities, yet they are being vilified for allegedly creating inequities. This narrative is not only disingenuous but also dangerous, as it shifts focus away from the systemic barriers DEI seeks to address.
By hearing Ames’s case, the Supreme Court lends credence to the false equivalency that promoting inclusion is inherently exclusionary. This perspective ignores the reality that diversity programs are not about preferential treatment; they are about leveling the playing field. Policies that encourage diverse hiring, bias reduction training, and inclusive benefits do not disadvantage majority groups—they enrich workplaces and benefit everyone by fostering innovation, collaboration, and a sense of belonging.
A Call to Action
The Ames case is not just a legal battle; it is a defining moment for corporate America. Employers, policymakers, and advocates must stand firm against efforts to delegitimize DEI under the pretext of reverse discrimination. The stakes are high: if we allow this narrative to prevail, we risk rolling back decades of hard-won progress and perpetuating a culture of exclusion.
Corporate leaders must double down on their commitment to DEI, ensuring that programs are not only compliant with Title VII but also resilient against bad-faith attacks. This includes:
Conclusion
The Supreme Court’s decision in Ames v. Ohio Department of Youth Services could mark a turning point in the fight for workplace equity. By dismissing this case, the Court has an opportunity to reaffirm that DEI programs are not a threat to fairness but a means of achieving it. Diversity is not a zero-sum game. It is the foundation of a just and prosperous society, where every individual has the opportunity to thrive.
We must reject the false narrative that DEI undermines fairness and instead champion its role in dismantling systemic inequities. The path forward demands courage, conviction, and an unwavering belief in the power of inclusion to transform not just workplaces but our shared future. The Ames case is a battle we cannot afford to lose, for it is a fight for the soul of corporate America and its commitment to equity for all.
Effenus Henderson
Referenced Article: Travis, Michelle. "The Supreme Court Case That Will Fuel The Corporate DEI Debate In 2025." Forbes, December 22, 2024.
The Supreme Court is set to decide a case in 2025 that is sure to fuel the debate over corporate DEI programs. In Ames v. Ohio Department of Youth Services, the Court will address the threshold evidentiary standard in reverse discrimination claims, which are increasingly being used to target diversity, equity, and inclusion initiatives. In my latest Forbes article, legal experts weigh in on whether the hype is actually about law, or is really about politics. Full article: https://lnkd.in/g29aXJH8
Citations from several far right groups:
America First Legal Amicus Brief (https://www.supremecourt.gov/DocketPDF/23/23-1039/335243/20241216141110870_Amicus%20Brief%20-%20FINAL%20-%20PDFA.pdf)
Mountain States Legal Foundation Amicus Brief (https://www.supremecourt.gov/DocketPDF/23/23-1039/335210/20241216115301974_FINAL%20Merits%20AC%20Ames.pdf)
Business Leadership/Executive Performance Coach and Facilitator | Impactful Speaker | Guiding visionary leaders to develop talent, perform successfully, and exceed projections.
2dThis is essential information for people interested in the legal aspect for what is happening in DEI programming. This is a brilliant analysis worth sharing. Thank you Effenus.
I help industry-leading organizations drive higher performance & results by creating inclusive cultures | Linking DEI to Business for 25+ Yrs
2dStephen Miller represents a group of white men who are wealthy and in key influential positions and yet it is still not enough for them. I spent all of last year researching this horrific disinformation that is totally intentional and undermining decades of work.
Co Director at Institute for Sustainable Diversity & Inclusion
2dTakeaways In Ames v. Ohio Department of Youth Services, the U.S. Supreme Court will decide the pleading standard that must be met for workplace discrimination suits brought by a member of a majority group. Five federal circuit courts of appeal hold that majority plaintiffs who allege Title VII discrimination must show “background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.” If the U.S. Supreme Court invalidates the background circumstances rule, majority plaintiffs suing in the five circuits will have an easier path to proving “reverse discrimination” under Title VII.