The Ames Decision: What It Means for DEI and How to Build Truly Equitable Processes

When I was about to read the Supreme Court's decision in Ames v. Ohio Department of Youth Services, I braced myself for another seismic shift in DEI terrain. Then came shock number one: it was unanimous. Nine justices—unanimously—sided with a straight white woman in a discrimination case against LGBTQ+ colleagues.

I stared at the screen, trying to figure out what I was missing. But as I've worked through this ruling and dissected its implications, something unexpected emerged: this decision reveals how equitable practice can actually be future-proofed in America's current legal landscape.

What Happened in Ames

Let me break down the case: Marlene Ames, a heterosexual woman working for Ohio's Department of Youth Services, was demoted and passed over for promotion. The positions went to a lesbian woman and a gay man instead. Eames sued for discrimination, but hit a roadblock at the lower court level due to something called the "background circumstances rule"—essentially, a higher evidence standard that majority group members had to meet to prove discrimination occurred.

The Supreme Court unanimously struck down this higher standard. Their reasoning? All employees, regardless of whether they're from majority or minority groups, should face the same burden of proof when claiming discrimination.

At first glance, this feels like a gut punch to those of us who understand that discrimination laws exist because marginalized communities fought—literally bled—for these protections. These laws were hard-won victories against systematic oppression, and seeing them applied to protect majority groups can feel like a betrayal of their original purpose.

The Heart of the DEI Tension

This case crystallizes something I've been grappling with in my DEI practice: the tension between what many of us may want these laws to do (correct historical wrongs and actively promote marginalized groups) and what they actually say (eliminate barriers to equal treatment for all).

This is exactly why Republican lawmakers and appointees have been able to successfully challenge DEI programs. Many of us have been operating under the assumption that these programs exist to support and promote historically marginalized people. In reality, as written, they exist to eliminate barriers to access, which isn't the same thing as promotion.

When we take it upon ourselves to celebrate and actively promote diversity (which many of us do, in the spirit of recognizing gaps in representation), we risk coming into conflict with the law if we're not careful about how we structure these efforts.

A Tale of Two Approaches

Here's what's fascinating: our neighbors to the north have taken a fundamentally different path. Canada's anti-discrimination laws focus on preventing discrimination against any person, rather than emphasizing patterns of behavior toward specific groups. But—and this is crucial for our Canadian readers who know this firsthand—there are also specific clauses that guarantee equal rights and amelioration programs for disadvantaged groups. This framework allows affirmative action-style programs to exist legally and explicitly.

Canada's approach embraces restoration alongside prevention. The U.S. system, rooted in ideals of meritocracy, focuses primarily on the latter. American law isn't designed to correct for past wrongs—it's designed to ensure the "best" rise to the top without intentional discrimination blocking their path.

For those of us working across both systems, this creates interesting dynamics. I find myself drawn to Canada's restorative framework—true accountability shouldn't just prevent future harm; it should repair past damage. But for organizations operating in the U.S. (or those with cross-border operations), the reality is working within a system that prioritizes individual fairness over collective restoration, while continuing to advocate for broader change.

How Organizations Can Protect Themselves (And Do Better)

Regardless of your motivation—whether you're driven by a commitment to social justice or simply want to comply with the law and mitigate risk—the methods for creating equitable processes are remarkably similar. Here's what organizations can do to prevent situations like the Ames case while building genuinely fair systems:

1. Create Clear, Transparent Promotion and Performance Management Processes

This isn't just about having a system—it's about having one that's transparent and appropriate for the specific work and roles in question. Every step should be documented and defensible.

2. Move Beyond Experience-Based to Skills-Based Evaluation

Instead of focusing solely on years of experience, degrees, or previous titles, evaluate candidates on their ability to actually perform the work. This includes both technical skills and soft skills relevant to the role.

For example, if cultural competence is crucial for a position involving community engagement, that becomes a measurable skill. You can ask candidates: "In what ways have you built relationships with the communities we serve?" or "How have you established trust in cross-cultural settings?" These aren't identity-based questions—they're performance-based questions that anyone can answer, though lived experience may enhance someone's ability to respond effectively.

3. Understand the Legal Framework

The Supreme Court's decision establishes a three-part framework for discrimination claims:

First, the person claiming discrimination needs to present enough evidence to create an inference of unlawful discrimination. The Court rejected the idea that majority group members need to meet a higher standard here.

Second, the employer must articulate a clear, legitimate, non-discriminatory reason for any adverse employment action. This means having documentation—rubrics, comparisons, and evidence that supports your decision-making.

Third, if the employer provides that evidence, the person claiming discrimination must prove that the employer's stated reason is illegitimate and actually a cover for discrimination.

Many organizations fail at step two. We make hiring and promotion decisions based on gut feelings or informal conversations, then can't produce evidence to support those choices when challenged.

The Practical Path Forward

Here's what I've learned from working with organizations on equitable processes: when you build systems that are truly fair and transparent, they benefit everyone, including people from marginalized backgrounds who have historically faced barriers.

Skills-based evaluation criteria don't just level the playing field; they often reveal capabilities that traditional experience-based metrics miss. When you ask specific, job-relevant questions about cultural competence, community engagement, or inclusive leadership, you're not making assumptions based on identity—you're evaluating demonstrated ability.

The business value is clear: people who can effectively connect with diverse communities, build trust across differences, and navigate complex cultural dynamics are valuable assets. These skills matter regardless of who possesses them.

Where This Leaves Us

On one hand, this ruling feels like a loss for those of us committed to actively correcting historical discrimination and systematic marginalization. The unanimous nature of the decision—across justices with very different political perspectives—suggests a strong commitment to preserving what they see as the letter of the law and the integrity of the legal process itself.

On the other hand, this is a win for equitable practices and policies when properly designed. It forces us to be more precise about what we're doing and why, which ultimately makes our work stronger.

I'm reminded that we're part of a long legacy of people who fought for these laws to exist in the first place. Their work created the foundation we're building on, even if that foundation doesn't go as far as we might wish it did.

Moving Forward

The residual impacts of creating truly equitable workplaces for everyone will, over time, remove some of the barriers that have historically affected marginalized people. It's a slower path than direct promotion and celebration, and it doesn't solve the problem of hearts, minds, and embedded biases. But it's the system we have, and we can work within it while continuing to push for something better.

The key is being intentional about building processes that are both legally sound and genuinely fair. When we do that well—whether through frameworks like ISO 30415:2021 or other systematic approaches—we create workplaces where talent can rise regardless of background, where decisions are transparent and defensible, and where everyone has a fair shot at success.

That's not the end goal, but it's a solid foundation for the work that still lies ahead.

Supporting Your Organization Through Complex Times

As we navigate these evolving legal and cultural landscapes, many organizations are finding they need sustained, expert guidance to build truly equitable systems while staying compliant with changing regulations. The work of bridging legal requirements with equity goals requires ongoing attention and specialized expertise—but for most organizations, it's not a full-time internal role.

That's why we've recently launched our External Senior Leader for Internal Transformation service at Hyphens and Spaces. This fractional leadership model provides organizations with dedicated senior-level support to build an inclusive culture, develop talent, and strengthen systems through sustained partnership rather than project-based engagements.

Whether you're working to create the transparent, skills-based evaluation processes discussed in this post, navigating complex team dynamics, or building sustainable equity practices that can weather legal challenges, having an experienced external partner can make all the difference in maintaining momentum and achieving lasting change.

If you're interested in learning more about how this kind of ongoing partnership might support your organization's equity and culture work, visit hyphensandspaces.com/fractionalconsulting.

What are your thoughts on the Ames decision? How is your organization thinking about balancing legal compliance with equity goals? I'd love to hear your perspectives and experiences as we all navigate this evolving landscape together.