Brian M. Hayes, Author at Laborsphere

Supreme Court Clarifies Title VII Disparate Treatment Theory: What Employers Should Know in the Evolving Legal Environment

Earlier this month, the United States Supreme Court unanimously settled the burden required by a plaintiff to satisfy a prima facie showing of disparate treatment discrimination by an employer. On June 5, 2025, the Court held in Ames v. Ohio Department of Youth Services¹ that the plain text of Title VII does not differentiate burden requirements between minority-group plaintiffs and those of a majority group.

The decision specifically impacts the Sixth, Seventh, Eighth, Tenth and D.C. Circuit Courts of Appeal, which had identified a heightened burden for a prima facie case of disparate treatment by majority-group plaintiffs under Title VII. Nevertheless, employers everywhere should be mindful of this legal development, particularly considering other recent policy changes to anti-discrimination enforcement under the Trump administration.

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Key U.S. District Court Ruling: Plaintiff’s Challenge to DEI Program Under Section 1981 Fails When She Lacked Standing Because She Did Not Apply

The America First Legal Foundation, which filed suit on behalf of the plaintiff, included this action on its website as one of its “featured actions” in the “DEI” space. This case is similar to many other challenges to DEI programs in that the lawsuit was being brought by a plaintiff who has not applied to the program at issue. All told, the court found that the plaintiff did not have standing to bring a claim derived from an allegedly discriminatory policy from which she had yet to be subjected. The plaintiff has appealed to the Fifth Circuit. As these cases continue to unfold — at the trial level and on appeal — organizations should be prepared to assert standing defenses when it becomes clear that a plaintiff did not take these affirmative steps.

To view the full alert, visit the Faegre Drinker website.

Key U.S. District Court Ruling: Plaintiff’s Challenge to DEI Program Under Section 1981 Fails When She Lacked Standing Because She Did Not Apply

Although the ruling has been appealed, plaintiffs bringing challenges to organizational DEI programs face standing concerns when they do not apply for or otherwise attempt to participate in those programs. As these cases continue to unfold, organizations should be prepared to assert standing defenses when it becomes clear that a plaintiff did not take these affirmative steps.

To view the full alert, visit the Faegre Drinker website.

A Tale of Two Cases – DEI Programs Under Scrutiny

Last month, two courts reached different conclusions about the legality of companies’ diversity equity and inclusion programs under Section 1981. The cases display different tactics and defenses and raise questions about how different courts will respond to these kinds of claims in the future.

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Defending Litigation Attacks on DEI Programs: A Status Update

Before the Supreme Court’s ruling in Students for Fair Admissions vs. Harvard, four Fortune 150 companies were sued over their diversity, equity and inclusion, and environmental, social and governance practices. This alert provides an update on those cases.

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Update on Post-SFFA Challenges to DEI Initiatives: Law Firm Fellowship Programs in the Crosshairs

Since the U.S. Supreme Court’s decision in Students for Fair Admissions vs. Harvard, the American Alliance for Equal Rights has now sued two large law firms for alleged violations of Section 1981 of the Civil Rights Act of 1866 over their fellowship programs offered to law students. Despite the Alliance’s complaints referencing gender, LGTBQ+ status and/or disability, the claims are limited to Section 1981 which addresses only racial discrimination in the fellowship programs.

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