Don’t Overreact to Ames: Reassuring Employers That Their DEI Programs Remain Legal

Jonathan Lehr

“[P]roponents of diversity, equity, and inclusion programs should stop pretending that they are complying with the law.”[1] These were the ringing words one commentator greeted the Supreme Court’s decision in Ames v. Ohio Department of Youth Services with this past summer.[2] Indeed, many conservative court-watchers hailed Ames as the death of DEI.[3] But that is not true. Rather, Ames is a “narrow, technical” ruling, one that does nothing to invalidate properly constructed diversity initiatives.[4]

In Ames, the Supreme Court was asked to interpret Title VII of the Civil Rights Act of 1964, a landmark piece of legislation which forbids discrimination in employment.[5] The plaintiff, Marlean Ames, was a heterosexual woman who claimed that her employer, the Ohio Department of Youth Services, promoted LGBTQ+ individuals over her.[6] Ultimately, Ames claimed, she was demoted after many years of service in favor of an LGBTQ+ new hire.[7]

Fifty years ago, the Court established a framework by which plaintiffs could prove employment discrimination under Title VII without direct evidence of discriminatory intent in McDonnell Douglas Corporation v. Green.[8]McDonnell Douglas created a three-step process for proving employment discrimination; the first step, and the one in question in Ames, requires a plaintiff to make out a prima facie case of discrimination.[9] In the years since McDonnell Douglas, some circuits–the Sixth, Seventh, Eighth, Tenth, and D.C. circuits–have modified that first step when the plaintiff hailed from a majority group.[10] These circuits required majority group plaintiffs to demonstrate that their employer “is that unusual employer who discriminates against the majority[,]” a burden not placed on minority plaintiffs.[11]

It was this unequal burden that the Court rejected in Ames, explaining that Title VII’s plain text drew no such majority-minority distinction and that the so-called “background circumstances” rule could not be squared with McDonnell Douglas’s flexibility.[12] The unanimous opinion, authored by liberal Justice Ketanji Brown Jackson, said nothing more controversial than that Title VII protects all Americans equally.[13] The Court has always insisted that McDonnell Douglas relies “upon the same standards” no matter whether the plaintiff is a majority or minority group member.[14] As such, its rejection of the “background circumstances” test came as no surprise, and the case was an easy one for the Court; Justice Jackson wrote that Ohio’s counterarguments “miss[ed] the mark by a mile.”[15]

In sum, employers in the affected circuits will need to be wary—the Court has made it easier for majority group plaintiffs to allege discrimination, and more claims are likely to come as a result.[16] This is especially true because DEI has recently been the target of attacks from other sources.[17] But that does not mean that DEI is illegal or that employers cannot pursue a commitment to diversity.[18] It does mean that employers need to be careful, and should take steps to ensure that their programs comply with the law.[19] Most importantly, they should make sure that their DEI programs are administered “on a non-discriminatory basis[.]”[20] With that being said, Title VII already made it illegal for employers to engage in discriminatory behavior; all Ames does is make it easier for majority-group employees to allege discrimination in a few circuits.[21] Nothing is illegal after Ames that was not illegal before the decision,[22] and employers can continue to provide diversity training, “employee resource groups,” and so on.[23]

Employers should also keep an eye on McDonnell Douglas itself; in a sharply-worded concurrence, Justice Thomas and Justice Gorsuch suggested that they would be open to reconsidering “whether the McDonnell Douglas framework is a workable and useful evidentiary tool.”[24] Its not the first time those two Justices have called the foundational case into question.[25] If it were to happen, the fall of McDonnell Douglas would be “momentous[.]”[26]McDonnell Douglas tends to be employer-friendly after the easy-to-satisfy prima facie step; without it, employees could see more success in employment discrimination claims.[27]

Ames v. Ohio Department of Youth Services did not herald the end of DEI.[28] Outside of a handful of circuits, its impact is likely to be small.[29] With that being said, employers pursuing diversity committments must be more careful than ever that they are administering those programs in compliance with the law.[30]

[1] Scott Douglas Gerber, How Justice Clarence Thomas Led SCOTUS to Kill DEI, Fox News (June 7, 2025), https://perma.cc/3JEC-TH52.

[2]Id.

[3] George R. La Noue, Ames and DEI’s Dim Future, Law & Liberty (July 21, 2025), https://perma.cc/9PCY-WVMW.

[4] Michelle Travis, Supreme Court Didn’t Make DEI Illegal in Ames Ruling, Lawyers Explain, Forbes (June 11, 2025), https://perma.cc/7AGG-S738.

[5] Ames v. Ohio Dep’t of Youth Servs., 605 U.S. 303, 306 (2025) (citing 42 U.S.C § 2000-e-2(A)(2)).

[6]Ames, 605 U.S. at 306.

[7] Ames v. Ohio Dep’t of Youth Servs., 87 F.4th 822, 824 (6th Cir. 2023).

[8] 411 U.S. 792, 802-04 (1973).

[9]Id. at 802 (One way a plaintiff can establish a prima facie case is by showing “(i) that [they] belong[] to a racial minority; (ii) that [they] applied and [were] qualified for a job for which the employer was seeking applicants; (iii) that, despite [their] qualifications, [they were] rejected; and (iv) that, after [their] rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications.”)

[10]Ames, 605 U.S. at 308 n.1.See Parker v. Balt. & Ohio R.R. Co., 652 F.2d 1012, 1017 (D.C. Cir. 1981); Murray v. Thistledown Racing Club, Inc., 770 F.2d 63, 67 (6th Cir. 1985); Notari v. Denver Water Dept., 971 F.2d 585, 589 (10th Cir. 1992); Mills v. Health Care Servs. Corp., 171 F.3d 450, 456-57 (7th Cir. 1999); Hammer v. Ashcroft, 383 F.3d 722, 724 (8th Cir. 2004).

[11]Parker, 652 F.2d at 1017.

[12]Ames, 605 U.S. at 309.

[13]Id. at 310.

[14] McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 280 (1976).

[15]Ames, 605 U.S. at312.

[16] George C. Morrison et al., Ames v. Ohio: Supreme Court Upholds Uniformity in Title VII Discrimination Claims, Buchanan, Ingersoll & Rooney PC (June 13, 2025), https://perma.cc/46N6-8L9B.

[17] Exec. Order No. 14151, 90 Fed. Reg. 8339, 8339 (Jan. 20, 2025).

[18]National Employment Lawyers Association Statement on the Supreme Court’s Unanimous Decision in Ames v. Ohio Department of Youth Services, Nat’l Emp. Law. Ass’n (June 6, 2025), https://perma.cc/8894-KUCV.

[19] George C. Morrison et al., supra note 16.

[20]Id.

[21] Michelle Travis, supra note 4.

[22]Id.

[23] Letter, Charlotte A. Burrows et al., Statement of Former Equal Employment Opportunity Commission (EEOC) Officials on Employer Diversity, Equity, and Inclusion Efforts (April 3, 2025), https://perma.cc/F6KC-V83J.

[24]Ames, 605 U.S. at 314 (Thomas, J., concurring).

[25] Hittle v. City of Stockton, 145 S.Ct. 759, 760 (2025) (Thomas, J., dissenting from denial of cert.).

[26] William R. Corbett, Stripping Title VII Down to Its Bare Essentials: Uncovering an Employee-Friendly Employment Discrimination Law, 94 Geo. Wash. L. Rev. Arguendo 35, 52 (2025).

[27]Id. at 54. See Katie Eyer, The Return of the Technical McDonnell Douglas Paradigm, 94 Wash. L. Rev. 967, 977 (2019).

[28] Alyesha Asghar and Julian G.G. Wolfson, High Court Eliminates ‘Background Circumstances’ as a Requirement in ‘Reverse Discrimination’ Cases, Littler Mendelson P.C. (2025), https://perma.cc/GW8B-99MF.

[29]Ames, 605 U.S. at 308 n.1.

[30] George C. Morrison et al., supra note 16.