Melanie Ronen, partner and chair of the employment practice at Stradley Ronon, advises employers across industries on the full spectrum of workplace issues, from hiring and compliance to litigation defense.
The U.S. Supreme Court’s landmark decision earlier this year in Ames v. Ohio Department of Youth Services represents a reaffirmation that Title VII of the Civil Rights Act of 1964 protects all employees.
By striking down the “background circumstances” rule used in some fashion by more than half of the federal circuit courts — requiring members of a majority group to satisfy a heightened evidentiary standard to prevail on a Title VII claim — employers can expect to see an uptick in reverse discrimination lawsuits.
The recent convergence of legal rulings, regulatory actions and cultural pressures means HR leaders are working in an increasingly complex environment. Employers must balance maintaining inclusive workplaces while ensuring their policies and practices are viewed as fair and non-discriminatory when applied to any demographic group. The Ames decision’s potential signaling of a likely surge in reverse discrimination lawsuits creates new legal and operational challenges for HR teams.
How can companies adapt to the post-Ames landscape? Although we may see more lawsuits and developments in this area, HR leaders can take immediate steps to mitigate legal risks.
Update policies and procedures — and document, document, document
Without question, employers must review their equal employment opportunity and anti-harassment policies to ensure they clearly include two statements: assurance that such policies apply equally to all employees, and confirmation that employment decisions will not be made based on any applicant’s or employee’s protected class.
Employers should also maintain good HR hygiene with respect to documenting workplace activities and compliance, including the duties and responsibilities of positions; employee counseling, reviews and evaluations; hiring, promotions, discipline and terminations; and manager trainings regarding EEO and anti-harassment policies. If your team has room for improvement in documentation, now is the time to make the necessary changes.
Company policies should be applied uniformly, with documentation to demonstrate equal treatment. HR leaders must provide all employees with the same level of procedural fairness and objectivity.
In a similar vein, employment and hiring decisions should be made using objective and consistent criteria. For employers that use generative artificial intelligence in this process, the technology should be deployed carefully and with a complete understanding of how third-party vendors use data and make decisions. Companies are already facing increased legal scrutiny for inadvertent generative AI discrimination, particularly in hiring and recruiting. The technology should always be used in conjunction with human oversight and backed by clear policies and procedures.
Reconsider language in DEI programs and anti-harassment trainings
Many organizations have implemented DEI initiatives and trainings aimed at increasing workplace inclusivity. These programs remain an essential component of workplace culture, and the Ames decision doesn’t mean HR staff should abandon these initiatives altogether.
Instead, employers should ensure that initiatives emphasize fairness and equal opportunity for everyone, regardless of their demographic characteristics. The language used to describe such programs should not exhibit favoritism or exclusion of any groups.
Additionally, employers should carefully review management, anti-harassment and other training to ensure these programs are unbiased. Trainings should clearly state that discrimination against anyone is unlawful, including historically advantaged groups.
Mitigate legal risks and prepare for novel complaints and litigation
With removal of the heightened standard for majority-group employees under Title VII, companies should anticipate an increase in both internal complaints and formal lawsuits alleging reverse discrimination.
In response, employers must establish a clear complaint resolution process. Employees should be able to raise concerns confidentially and without fear of retaliation, and HR teams should respond to claims quickly and consistently using a standardized procedure. Being attentive to employee concerns can prevent claims of reverse discrimination from growing into full-blown lawsuits.
Legal counsel will be essential as companies face novel challenges. Lawyers can review hiring policies, equity and inclusion initiatives, training programs and employee handbooks to identify potential areas of exposure before problems arise. This is especially important for organizations operating in multiple states, as reverse discrimination claims may progress differently depending on jurisdiction.
Companies should also closely monitor developments in federal and state courts, as the Ames ruling may prompt additional lawsuits that further shape the boundaries of permissible diversity practices.
Looking to the Future
Reverse discrimination claims aren’t new, but Ames has shifted the legal playing field. Employers that fail to adapt could face heightened litigation risk if their policies or programs are perceived as exclusionary. Companies that proactively evolve to meet this challenge can continue to champion inclusion while reducing legal exposure.
The Ames decision does not eliminate the importance of fostering inclusive workplaces. It does, however, signal that courts will more closely scrutinize whether employers’ policies and internal procedures align with federal anti-discrimination laws. For HR leaders, this moment calls for recalibration rather than retreat.
