DEI

On June 5, 2025, the U.S. Supreme Court altered the landscape for employers facing “reverse discrimination” Title VII lawsuits in the Sixth, Seventh, Eighth, Tenth, and DC Circuits, by striking down a rule that had required plaintiffs from “majority groups” to allege additional “background circumstances” to state a prima facie case of employment discrimination.  Examples of “background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority” included statistical data that the employer had engaged in a pattern of discrimination against majority groups or a member of the relevant minority group made the employment decision that allegedly harmed the member of the majority group.   In the other circuits, no such additional pleading requirement was required in reverse discrimination lawsuits.  Justice Jackson authored the Court’s 9-0 opinion, Ames v. Ohio Dept. of Youth Servs., No. 23-1039, and Justice Thomas filed a concurring opinion, joined by Justice Gorsuch.

As a practical matter, more “reverse discrimination” lawsuits in the Sixth, Seventh, Eighth, Tenth, and DC Circuits may survive a motion to dismiss—or employers may elect not to move to dismiss if the complaint’s allegations satisfy a Title VII plaintiff’s prima facie burden.  That said, the opinion does not alter the liability framework—employers can still achieve summary judgment dismissals of Title VII employment discrimination lawsuits by demonstrating that the employment decision at issue was made for legitimate, non-discriminatory reasons. 

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In Ames, the plaintiff alleged that her employer discriminated against her because of her heterosexual orientation when she was denied a promotion that was given to a lesbian woman and then later demoted and her prior position filled by a gay man.  Slip Op. at 2.  Analyzing her claim under the long-standing McDonnell Douglas evidentiary framework, derived from McDonnell Douglas Corp. v. Green, 411 U. S. 792 (1973), the District Court granted summary judgment for the employer, noting the plaintiff failed to make out a prima facie case of employment discrimination because she had not presented evidence of “background circumstances” that suggested her employer was the “rare employer who discriminates against members of a majority group.”  Slip Op. at 2.  The Sixth Circuit affirmed.

Continue Reading Supreme Court Holds That All Employment Discrimination is Equal: Ames v. Ohio Dept. of Youth Servs.

On January 21, 2025, President Trump issued the Ending Illegal Discrimination and Restoring Merit-Based Opportunity Executive Order (the “EO”), which revokes Executive Order 11246, a 60-year-old Civil Rights-era directive that prohibited federal contractors from discriminating on the basis of race, color, religion, sex, sexual orientation, gender identity, or national origin, and required federal contractors to take affirmative action to provide equal opportunity in employment. The EO seeks to “end[] illegal preferences and discrimination” and “promote individual initiative, excellence, and hard work” by ending the use of “dangerous, demeaning, and immoral race- and sex-based preferences under the guise of so-called ‘diversity, equity, and inclusion’ (DEI) or ‘diversity, equity, inclusion, and accessibility’ (DEIA)” programs. The EO does so by prescribing required contract provisions for federal contracts and by requiring specific reports from the heads of federal agencies, including identification of private entities for potential investigation, as described further below. The provisions of the EO do not apply to federal or private sector employment and contracting preferences for veterans. Federal contractors and grant recipients have until April 21, 2025 to comply with the EO’s revocation of affirmative action requirements. However, federal contractors, subcontractors, and grant recipients may become subject to the new contract provision requirements imposed by the EO without delay.1

Elimination of Federal Contractor Affirmative Action Requirements & DEI References

In addition to revoking Executive Order 11246, the EO requires the Office of Federal Contract Compliance Programs (“OFCCP”), which has been responsible for administering and enforcing Executive Order 11246 for many years, to “immediately cease” promoting diversity, enforcing affirmative action requirements, and allowing or encouraging federal contractors and subcontractors to engage in “workforce balancing” based on race, color, sex, sexual preference, religion, or national origin. The EO explicitly prohibits federal contractors or subcontractors from considering race, color, sex, sexual preference, religion, or national origin in employment, procurement, or contracting practices. Although OFCCP will no longer enforce affirmative action requirements, the EO delays implementation of this prohibition for current federal contractors through April 21, 2025, so contractors have until this date to sunset any affirmative action programs, absent judicial intervention.2

The EO also directs the Director of the Office of Management and Budget (“OMB”) and the Attorney General to review and revise, as appropriate, all government-wide processes, directives, and guidance; remove references to DEI principles from federal acquisition, contracting, grants, and financial assistance procedures; and terminate “all DEI-related mandates, requirements, programs, or activities,” which the EO does not define.

Continue Reading President Trump’s “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” Executive Order Targets Federal Contractors and the Private Sector