By Jess Bravin and Erin Mulvaney

WASHINGTON -- Amid a MAGA-led backlash to diversity, equity and inclusion policies, the Supreme Court on Wednesday will consider an issue that has split judges around the country: What do white people and other members of a majority group have to prove to win a claim for reverse discrimination?

Marlean Ames claims the Ohio state agency where she works denied her a promotion and then demoted her because she is heterosexual, instead giving both her old job and the one she had sought to gay people. A federal appeals court in Cincinnati threw out Ames's lawsuit, finding that she failed to show the "background circumstances" suggesting the employer was hostile to straight people -- a threshold step that wouldn't have been required had a gay employee claimed discrimination.

The Supreme Court is reviewing her appeal.

The Civil Rights Act of 1964 forbids employment discrimination because of an "individual's race, color, religion, sex, or national origin," protection the Supreme Court in 2020 extended to LGBT workers. But Americans have long disputed whether attaining equal opportunity requires absolute neutrality today, or should take into account centuries of state-imposed and socially accepted discrimination that minority groups have faced.

Typically, liberals have contended that minority groups deserve extra consideration in light of that legacy, while conservatives, as Chief Justice John Roberts put it in a 2007 opinion, argue that " the way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

Wednesday's case scrambles those stereotypes. The Biden-era Justice Department filed briefs backing Ames, contending that the extra burden that several federal appeals courts impose on majority plaintiffs such as Ames goes beyond what Title VII of the Civil Rights Act allows.

"Ames, a heterosexual woman, has the same protection from discrimination based on sexual orientation as employees who are gay," then-Solicitor General Elizabeth Prelogar said in a December brief. "Individuals of all races, sexes, religions, and national origins" are entitled to the same protections "regardless of whether a majority of the population shares their protected trait."

Representing the state agency, Republican Ohio Attorney General Dave Yost argues that it makes sense to probe more deeply into reverse-discrimination claims, defending an approach first laid out in a 1981 appeals court ruling by a liberal titan, Judge Abner Mikva.

The case held that in such cases, plaintiffs must show that "background circumstances support the suspicion that the defendant is that unusual employer who discriminates against the majority."

Yost argues that Ames "does not bear a higher burden simply because the evidence that is relevant to her claim is different from the evidence that might be relevant to a different plaintiff bringing a different claim."

Lower courts are divided on the question. Five federal appeals courts, including the Sixth U.S. Circuit Court of Appeals in Cincinnati, impose the background-circumstances test in reverse-discrimination claims.

Three other appeals courts reject that standard. Last year, the Fourth Circuit upheld a jury verdict for a hospital executive who said he was fired for being a white man amid a workforce diversity push.

The backlash to DEI programs was stoked by Roberts's 2023 opinion ending the use of race in college admissions. The decision, in cases filed against Harvard College and the University of North Carolina, spurred many employers to roll back their DEI programs they had championed only years before.

Lawsuits alleging that DEI programs discriminate against white people and other members of majority groups are mushrooming, according to a review of federal litigation by the law firm Gibson Dunn. In the roughly four years between October 2019 and the Harvard ruling in June 2023, at least 40 such cases were filed. Nearly 100 lawsuits have been filed since, the survey found, with 60 in 2024 alone.

Major companies that have faced challenges include Starbucks, Meta, Expedia, CBS, and Johnson & Johnson.

If the Supreme Court makes it easier to win reverse-discrimination cases, it will supercharge the number of claims around DEI and workplace bias against majority groups, said Lauren Hartz, a partner with the firm Jenner & Block.

"We are in disagreement about what groups in American society today are advantaged or disadvantaged," Hartz said.

Gerald Maatman, a partner with Duane Morris, said the atmosphere around DEI and anti-affirmative action policy creates "a new gloss on the laws" that have existed for decades.

Reverse-bias suits, once rare, "used to be a theoretical risk," he said. "Now, it's a real risk."

Ames has worked for decades at the Ohio Department of Youth Services, which runs the state's juvenile correctional facilities. She was in charge of the agency's prison-rape prevention program in 2019 when she applied for a promotion. Ames didn't get the job and, according to her suit, a department supervisor suggested she consider retirement. The following month, Ames was stripped of her current post and offered the choice of demotion to a lower-paying position or leaving the department altogether.

A lesbian received the promotion Ames had sought, and administrators gave her old prison-rape prevention job to a 25-year-old gay man. Where Ames alleges discrimination, Yost argues she was reassigned due to a reorganization prompted by Republican Gov. Mike DeWine's call for "a more proactive approach to complying with the Prison Rape Elimination Act."

Some argue that it is no longer reasonable to assume that employers favor people who are white, straight or otherwise part of majority groups. Such presumptions are "highly suspect in this age of hiring based on" DEI programs, argues a friend of the court brief from the America First Legal Foundation, an advocacy group founded by Stephen Miller, a longtime adviser to President Trump who now serves as his deputy chief of staff.

Many civil-rights groups say the occasional example of reverse discrimination doesn't change history. Courts, according to a brief filed by the NAACP Legal Defense and Educational Fund, should be able to consider the "realities of this country's persisting legacy of discrimination."

A decision is expected by the end of June.

Write to Jess Bravin at Jess.Bravin@wsj.com and Erin Mulvaney at erin.mulvaney@wsj.com

(END) Dow Jones Newswires

February 26, 2025 09:00 ET (14:00 GMT)

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