DEI Rollbacks, Reverse Discrimination Are Top Employment Lawyers' Issues to Watch

DEI Rollbacks, Reverse Discrimination Are Top Employment Lawyers' Issues to Watch

November 02, 2026

By John Murph

On October 27, more than 150 attorneys convened online and at the D.C. Bar headquarters for the CLE seminar "Changing Currents in Employment Law." Throughout the three-hour program, much of the conversation centered on "reverse discrimination" and the dismantling of DEI initiatives.

Carol R. Ashley, of counsel at Jackson Lewis P.C., and Kate Mueting, administrative partner at Sanford Heisler Sharp McKnight, LLP, began the fast-paced event by delving into reverse discrimination cases in the wake of Ames v. Ohio Department of Youth Services. At the center of the 2025 U.S. Supreme Court case was a straight woman who was passed over for a promotion in favor of an LGBTQ candidate. The district court found that Ames lacked evidence of "background circumstances" required by some lower courts when the alleged discrimination is against a member of the majority.

"The Supreme Court then held and reversed the Sixth Circuit opinion, saying there is no increased burden for majority plaintiffs," Mueting said. "This was a unanimous decision. Justice Jackson wrote that Title VII protects any individual from discrimination without regard to whether that individual is in the majority or minority group."

Mueting said the Ames case "really doesn't move the needle a whole lot with respect to discrimination cases."

"There's not been a whirlwind of cases alleging discrimination against majority groups," Mueting continued. "We have found only one case where the Ames decision has explicitly changed the outcome," she said, referring to Massey v. Borough of Bergenfield. "Here, the Third Circuit explicitly cited Ames as a reason for reversing the district court's grant of summary judgment."

In Massey, a white police officer was denied a promotion to chief in favor of an Arab Muslim officer who had been the subject of seven complaints to the police department's Internal Affairs Bureau. Testimony showed that race was a consideration in the promotion. Before Ames, the district court said that the plaintiff did not allege sufficient background circumstances and could not get to trial. Post-Ames, the Third Circuit said, 'No, these claims do need to go to trial,'" Mueting said.

Mueting added that it was too early to tell if Ames will have greater impact in future cases involving alleged reverse discrimination.

Far-Reaching Impacts

The conversation then shifted to changes to the federal government's approach to DEI since January 2025, starting with Executive Order 14151, which mandated the termination of DEI-related policies, programs, and preferences across federal agencies.

"We've seen changes that no federal contractor can have DEI programs anymore," Ashley said. "It really goes deeper than that. People think it's anybody who has a major contract with the government; it's anybody who's touching federal funds."

Ashley said the administration's stance on DEI also reaches small business owners holding federal contracts. "They now have to decide whether they're going to do DEI programming because the person [who] buys their services may say, 'I don't want to work with anybody who has any DEI because I don't want to risk my large federal contract,'" Ashley explained. "So, it's really affecting more than we think in terms of the organizations and business institutions."

The statement by U.S. Equal Employment Opportunity Commission (EEOC) Chair Andrea R. Lucas that the commission is committed to a "colorblind" merit-based interpretation of Title VII enforcement puts the legal world in a conundrum "because on one hand the government is saying [that] it doesn't see color. But then the claims that the EEOC is bringing forward are about typically white men," Ashley said.

The rollback of DEI programs is also reshaping workplace employment decisions, Ashley said. "Whether you're small or large, or in a city or not, you have to decide - are you willing to be on the other side of a government investigation?" That's the decision that entities are making," she added.

Ashley advised proceeding with caution when conducting audits of a company's hiring, promotion, and retention practices. "Try to focus on individuals case by case, looking at actual files of review in terms of who's been hired, who's not hired … as opposed to looking at statistics and pulling data," Ashley said.

Mueting said companies should ensure they have clear and articulable metrics about their compensation or promotion decisions. "Studies show [that the] more you have to explain your reason for an employment decision, the less likely that [it's] going to be rooted in bias," Mueting said.

What Federal Contractors Need to Know

Meanwhile, D.C. Superior Court Judge Craig Leen and Outten & Golden, LLP partner Jenny R. Yang led the discussion on how federal contractors may proceed given the changed landscape.

Executive Order 14173, ending "illegal DEI discrimination," also invoked the False Claims Act, Leen said, as it mandates that the head of each federal agency must include provisions in every contract or grant acknowledging that compliance with all applicable federal anti-discrimination laws is "material" to the government's payment decision for purposes of the act. "And it also brought in the idea of treble damages and the potential of debarment," Leen said. "That got a lot of attention of federal contractors. It not only applied to federal contractors, [but] it also applied to federal fund recipients."

"[The executive order has] been challenged a number of times. It's been upheld a number of times. There have been a couple cases where it may not be enforced in certain areas, but largely it is still enforced, and it's something that federal contractors have to consider in terms of compliance," Leen added.

Yang explained how the Office of Federal Contract Compliance Programs (OFCCP) operates, stating that "[its] enforcement structure puts the onus on workers to come forward to file a complaint."

"And that's a very risky thing for workers to do," Yang said. "But [the] OFCCP has the authority, even without any complaint, to collect and analyze data, look at [a federal contractor's] policy. So, it shifted the responsibility to employers to actually self-evaluate, to identify where there may be discrimination."

The panelists also examined Executive Order 14281, deprioritizing the use of disparate-impact liability under Title VII, and Executive Order 14398, defining "racially discriminatory DEI practices" as disparate treatment (intentional discrimination).

"During my time at EEOC, we typically used disparate impact on testing cases, [such as] personality screens, as well as criminal history, credit screens, and others," Yang said. "We didn't often bring a pay and promotion case as disparate impact, disparate treatment."

She advised employers to continue collecting and analyzing demographic data to ensure they are not discriminating. "There's this attempt to conflate what is unlawful under Title VII, which is considering race or gender in an individual employment decision, and an attempt to suggest that considering data in the aggregate to analyze whether a practice is fair and nondiscriminatory is somehow an unlawful consideration of race," Yang said. "But our civil rights laws would not be able to operate if you couldn't be aware of race for purposes of understanding if discrimination exists."

"Disparate impact is about removing unjustified barriers to ensure that the measures that [employers] use to evaluate people for hire or pay are actually job-related," Yang added. "So disparate impact is very much a merit-based tool to ensure that employers' practices are actually tied to the jobs."

Yang and Leen agreed that regulations and guidance related to federal contractor EEO obligations continue to be in a state of flux, with additional administrative and judicial guidance expected in the coming months and years. The OFCCP has likely completed its significant regulatory actions, so contractors should continue to monitor its activity, they said. Yang and Leen also noted that the EEOC has published a proposed rule that would substantially revise the federal-sector EEO complaint process.