Understanding ‘Reverse Discrimination’ in the US

‘Reverse discrimination’ claims seemed to ramp up throughout the latter half of 2025. This article explores what’s driving this trend and where the law currently stands, to guide your compliance and workplace policies throughout 2026.  

What is Reverse Discrimination? 

Reverse discrimination is a phrase generally used to describe situations where a non-minority individual is discriminated against on the basis of race or other characteristics. 

However, through a legal lens, ‘reverse discrimination’ is a misnomer – or as the EEOC frames it “there is no such thing as reverse discrimination, there is only discrimination”.  

So, we aren’t saying that unlawful discrimination against a majority is legal. Instead, the legal framing means that, under US anti-discrimination laws, there is no distinction between majority and minority group plaintiffs. Discrimination is discrimination, regardless of whether it’s against a person whose traits align with the majority or minority within an organisation or the US more broadly.  

Claims involving ‘reverse discrimination’ or, rather, discrimination claims brought by people who would be considered to be among a majority within the US rose throughout 2025. There was also an important court decision in June 2025 that clarified the legal standards that apply to discrimination claims brought by a member of the majority.  

Unpacking Ames v. Ohio Department of Youth Services 

The Facts of The Ames Decision 

Ms. Ames, a heterosexual woman, had been employed by the Ohio Department of Youth Services (ODYS) since 2004. In 2019, the ODYS interviewed her for a new management position, but ultimately hired another candidate who is a lesbian woman. Ms. Ames was subsequently demoted, with a gay man hired to fill her previous role.   

As a result, she filed a lawsuit against ODYS for unlawful discrimination under Title VII, on the basis of her sexual orientation. Her claim initially failed at the District Court, and was appealed first to the Sixth Circuit court and then the Supreme Court of the US. The Supreme Court vacated the judgment of the lower courts and remanded it in its decision Ames v. Ohio Dept of Youth Services (the Ames decision), so it will be sent back to the District Court for reconsideration. 

Why The Ames Decision Matters 

When lower courts were making the determination about whether Ms. Ames would succeed in her claim against ODYS, they decided that she must first prove unlawful discrimination (like any other Title VII claim). But, as a member of the majority, she must also show “background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority”. In other words, the law was previously being interpreted to mean that members of the majority had an additional standard of proof to succeed in a discrimination claim.  

The Ames decision notes that “the text of Title VII’s disparate-treatment provision draws no distinctions between majority-group plaintiffs and minority-group plaintiffs”. Practically, this means that the lower courts should not impose higher standards of proof for a discrimination claim against members of a majority or minority. All discrimination claims should be treated equally.  

Further Reverse Discrimination Claims 

In addition to the Ames decision, 2025 saw fairly sweeping changes in the landscape of diversity, equity, and inclusion (DEI) policies. Some of the notable claims and changes include:  

• Executive Orders at the federal governmental level ending the resourcing of DEI efforts; 

• The State of Missouri brought a lawsuit against Starbucks in February for its compensation based on facial and sex-based quotas. Florida followed with its own suit against Starbucks for ‘reverse discrimination’ in November.  

• A host of other private unlawful discrimination claims relating to everything from fair lending to employment decisions to college admissions. One higher profile example of this is the pending claim by ex-TV anchor Kate Merrill who is suing WBZ, CBS, and others.  

Understanding Title VII Claims: A Primer for US Companies 

The EEOC’s position is that ‘different treatment based on race, sex or another protected characteristic can be unlawful discrimination, no matter which employees or applicants are harmed.’ 

Title VII is a federal law that deems certain actions unlawful, specifically it applies when an employer takes ‘an employment action motivated – in whole or in part – by race, sex, or another protected characteristic.’  

Employment actions include (but aren’t limited to) things like hiring, firing, compensation, promotion, demotion, fringe benefits, access to or exclusion from training, access to mentoring, internships, interviews, and assignment of job duties or work assignments.  

This is the legal standard that applies to any entity covered by Title VII in the US – so essentially any employer with 15 or more employees, as well as employment agencies, entities operating training programs, and labor organizations (including unions).  

Protected Traits under Title VII 

The following is a list of traits protected by Title VII in the US:  

• race,  

• color,  

• religion,  

• sex (including pregnancy, sexual orientation, or transgender status),  

• national origin,  

• age (40 or older),  

• disability and  

• genetic information (including family medical history). 

How To Run a Legally Compliant DEI Program 

This may leave you wondering how you could run a legally compliant DEI program in the US. To be clear, DEI programs are not ‘banned’ or unlawful under federal law. However, it’s worth reviewing yours to confirm that your company applies the same standards to all workers when it comes to employment actions.  

State laws regarding DEI programs do vary widely with some states supporting and affirming DEI policies (so long as they do not require businesses to take employment actions based on protected traits), while others have prohibited them. This means that companies operating across the US may need to have different DEI policies in different states.  

For those states that are silent on or do not otherwise prohibit DEI programs, it can be helpful to focus on inclusion as opposed to preference based on protected traits. Your policies should focus on creating a culture where all employees are supported, respected, and given equal opportunities to advance their career.  

A multistate guidance highlighted a host of policies that companies can promote, including:  

• Adopting widescale recruitment efforts 

• Using panel interviews 

• Setting standardized criteria for evaluating candidates and employees 

• Conducting training on topics such as unconscious bias, inclusive leadership, and disability awareness 

• Ensuring equal access to all aspects of employment, including through reasonable workplace accommodations. 

Policies That May Increase Compliance Risk 

Some policies that may increase legal compliance risk going forward include (but are not limited to):  

• Demographic goals for hiring, promotion or other employment actions.  

• Restricting access to specific programs (mentorships, internships, and the like) to people with specific protected characteristics 

• Creating race or gender-specific events or professional groups 

• Assigning roles or clients based on protected characteristics. The EEOC’s guidance about DEI-related discrimination specifically states that a business need or ‘client or customer preference is not a defense to race or color discrimination’. 

It’s also worth noting that employer-sponsored employee activities may fall under the umbrella of employment actions covered by Title VII. This means employers need to be careful about discrimination claims stemming from employee clubs or groups that use company time, facilities, premises, or any other form of employer support. 

Action Items For US Businesses 

Review Your Existing Policies to Confirm Neutral Language 

Your written policies can (and should) outline selection or participation criteria clearly, but you should not include any criteria relating to protected traits under Title VII (listed above). The types of criteria you may wish to include are experience, tenure, qualifications or certifications, and job performance.  

You should also be careful to revise any policies that tie compensation or performance to goals, targets, or quotas relating to protected characteristics.  

Ensure Hiring and Promotion Policies Do Not Reference Protected Traits At All  

The EEOC’s guidance expressly notes that employment actions that consider protected traits amongst other traits is not a defense to unlawful discrimination. It states that making a decision on the basis of a protected trait ‘does not have to be the exclusive (sole) reason for an employer’s employment action or the “but-for” (deciding) factor for the action. An employment action still is unlawful even if race, sex, or another Title VII protected characteristic was just one factor among other factors contributing to the employer’s decision or action.’ 

Statistical Analysis Could Help 

There are statistical analyses you can undertake to determine whether there are disparities in how your company treats people, whether in the majority or minority. This is outside the scope of what our firm offers, but it’s worth knowing about if you are facing a discrimination claim. This American Bar Association article may be helpful.  

The federal government has signaled that it plans to be aggressive in its enforcement of policies that unlawfully discriminate on the basis of protected characteristics. Investors and boards too are showing more hesitation towards DEI policies and initiatives, given the enforcement environment.  

If your business needs help reviewing its existing policies for language or practices that may be non-compliant, reach out. Our employment attorneys are available to assist you.  

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