As the title of this article might suggest, our modern world is inundated with acronyms. One frequently discussed lately is DEI (Diversity, Equity, and Inclusion). To some, DEI is little more than a recognition of what the United States is all about, freedom and equality. To others it is an unnecessary government intrusion on First Amendment rights, taking away freedoms by forcing people to accept views with which they might not agree. Whatever your take, DEI is about to get some high-profile attention in the coming months. On January 3, 2025, the U.S. Supreme Court (SCOTUS) took up the appeal of the case of Ames v. Ohio Department of Youth Services, a reverse discrimination case that will set the stage for SCOTUS to determine whether it should be more difficult for workers with a “majority background” (e.g. white, heterosexuals or men) to prove a workplace discrimination claim.
Relevant Facts in Ames Case
Ms. Ames, a white heterosexual female, claims she lost her job to a gay man and was passed by for promotion in favor of a gay woman. Her former employer, the Department of Youth Services, claims the decisions were based on performance. The District Court stated in its opinion that Ames had not shown any background circumstances that would suggest she was targeted because she was straight. The 6th Circuit Court of Appeals affirmed. Therein lies the issue: should a person of the majority background be required to demonstrate that they were targeted when that evidence is not required where a protected class brings the discrimination case under Title VII of the Civil Rights Act?
Current Law Is a Mixed Bag.
A prima facie case for Title VII-prohibited discrimination requires a showing of the following:
(1) individual is a member of a protected class; (2) experienced an adverse employment decision; (3) qualified for the relevant position; (4) and that the employer treated more favorably a similarly qualified person who was not a member of the same protected class.
Ms. Ames argued that she was discriminated against because of her sexual orientation, and therefore she proved all the elements. However, in several courts, including the 6th Circuit Court of Appeals, a heterosexual must make a showing in addition to the usual ones for establishing a prima-facie case. Specifically, Ames must show “background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.”
Other courts have directly rejected the background circumstances requirement, reasoning that it imposes an additional element and confounds the traditional 4-step discrimination test. Those cases conclude that a plaintiff is only required to produce sufficient evidence, under the totality of the circumstances, that he or she is, or has been, treated less favorably than others because of their protected characteristic.
In either case, DEI policies may be used as tools to prove that an employer is the type that discriminates against the majority less favorably than those of a protected class.
Bottom Line
The issue of what it takes to prove reverse discrimination is ripe for decision. The issue will be argued before the SCOTUS in February. That decision may open the floodgates to actions challenging DEI policies and initiatives used in an employment context.