Near the end of President Donald J. Trump’s first term in office, he issued an Executive Order titled Combating Race and Sex Stereotyping, the purpose of which was to “combat offensive and anti-American race and sex stereotyping and scapegoating.” The order curbed the federal government’s spending on diversity initiatives. Then, the Biden administration swiftly reversed the order. As we head into a second Trump presidency, employers—and those tracking employment law— are interested in the future of diversity programs.
Many businesses, including Walmart and McDonald’s, have rolled back their diversity, equity, and inclusion initiatives. Others, such as Costco, are currently sticking with their DEI policies. Studies consistently link greater workforce diversity to improved financial performance (McKinsey).
Meanwhile, employers are also tuning in on February 26, 2025, when the United States Supreme Court is set to hear oral argument in Ames v. Ohio Department of Youth Services to decide the question of whether, in addition to pleading the other elements of an employment discrimination claim under Title VII of the Civil Rights Act of 1964, a majority-group plaintiff must show “background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.”
The case was brought by Marlene Ames, a heterosexual woman who was hired in 2004 by a youth services agency. In 2014, Ames was promoted to an administrator position. In 2019, she applied for a promotion to become a Bureau Chief. She was not selected for the job and was instead demoted. The agency promoted a gay man to fill her former position and later selected a gay woman for the Bureau Chief job.
Ames filed suit against her employer, alleging discrimination based on her sexual orientation in violation of Title VII. The district court dismissed the case for insufficient evidence because, based on Sixth Circuit precedent, a plaintiff seeking to prove “reverse” discrimination (discrimination against a member of a majority group) is required to make an additional showing of “background circumstances to support the suspicion that the defendant is that unusual employer who discriminations against the majority.” Ames was unable to make the required showing.
Five federal circuits require the additional element of “background circumstances” to prove reverse discrimination claims, while seven do not. The Supreme Court’s decision may resolve this conflict. While not directly related to an employer’s diversity, equity, and inclusion program, the Ames case could have significant implications for such programs. Ames alleged that her employer individually discriminated against her because she is heterosexual by selecting gay employees.
If the Supreme Court determines that the “background circumstances” element is not required, it could make it easier for employees to state a prima facie case of reverse discrimination. Together, the pressure on DEI programs and the relaxing requirements to prove reverse discrimination could lead to a surge in the number of claims and lawsuits challenging DEI programs and reverse discrimination claims. By being aware of these issues, employers can anticipate and navigate potential legal challenges.
Practice Tips
- Focus on Business Objectives
Employer programs that align with the business’s objectives, such as making the workplace more inclusive to promote organizational goals, may more successfully overcome legal challenges.
- Avoid stereotypes
Employers should always avoid using quotas or protected characteristics as a factor in employment decisions. Stereotypes should be rigorously avoided, and employment decisions should be made for legitimate business reasons. This reminder may help employers ensure that their employment decisions are fair and legally compliant.
- Don’t single out minorities or other groups for specialized training or assignments
Avoid outreach efforts that target a particular group. Some employers might be tempted to have mentorship or other programs which seek to assist minority employees succeed but any such programs should be open to all employees. The goal should be to develop and produce new leaders within the workplace regardless of background.
Conclusion
As we begin 2025, this is an excellent time to review employer programs that touch on diversity, equity, and inclusion or show favoritism to any group based on protected characteristics or stereotypes, however well-intentioned. Diverse workplaces have generally promoted business objectives, from the bottom line to employee morale. When implemented effectively, legally compliant DEI programs may contribute to business success.
Disclaimer: This material is provided for informational purposes only. It is not intended to constitute legal advice, nor does it create a client-lawyer relationship between Galloway and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions.
Doris Bobadilla, Esq.
Licensed in Louisiana, Mississippi, Texas, Florida
dbobadilla@gallowaylawfirm.com | 985-674-6680
Wendell Hall, Esq.
Licensed in Louisiana and California
whall@gallowaylawfirm.com | 985-674-6680