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Supreme Court of the United States New Opinion on "Reverse Discrimination" and Final "Report Card" of the Colorado Legislative Session

    June 20, 2025
    By Michael Santo, COSHRM Legislative Director and Managing Attorney at Bechtel & Santo
     
    After months of speculation, the Colorado legislature wrapped up its year and presented Governor Polis with a number of employment/human resources bills. Which ones would he sign?  Which ones would he veto?  It turned out that it was a lot more of the former and not many of the latter.
     
    Around the same time that Colorado was wrapping up its term, the Supreme Court of the United States issued its decision regarding the appropriate standard for “reverse discrimination” claims and, perhaps, signaled that it could be willing to overturn the discrimination standard that has been in place for more than 50 years. 
     
    In short, the word of the day is “busy, busy, busy.” 
     
    Ames v. Ohio Department of Youth Services (U.S. 2025). For more than 15 years, Marlean Ames worked for the Ohio Department of Youth Services.  According to Ms. Ames, in 2019, she applied for a promotion, but the organization selected a lesbian woman for the position instead of Ms. Ames.  Then, a short time later according to Ms. Ames, the organization demoted Ms. Ames and replaced her with a gay man.  Ms. Ames filed a lawsuit against the Company claiming that it undertook adverse actions against her (i.e., not receiving the promotion, and being demoted) because of her sexual orientation (i.e., heterosexual). 
     
    When presented with the case, the 6th Circuit Court of Appeals dismissed it because the Court determined that as a heterosexual, Ms. Ames had a higher standard of proof because she was in the majority group, which is frequently referred to as “reverse discrimination.” 
     
    Generally, in discrimination claims, courts employ the burden-shifting framework first articulated in the 1973 case McDonnell Douglas v. Green.  That framework is: 
     
    • First, the plaintiff must show: (1) the plaintiff is a member of a protected class, (2) who suffered an adverse action, and (3) the adverse action occurred in circumstances giving rise to an inference of discrimination.
    • Once the plaintiff proves those three elements, the burden shifts to the defendant  to articulate a legitimate, nondiscriminatory reason for the adverse employment action.
    • If the defendant does so, the plaintiff again bears the burden of demonstrating that defendant's proffered reason is unworthy of belief. 
    But in the Ames case, the 6th Circuit determined that Ms. Ames was required to show as part of the first step additional that she was subjected to certain “background circumstances” (e.g., that there was a pattern of discrimination against the majority group and that the minority group made the decision that she claimed was discriminatory) that plaintiffs are not required to prove in non-reverse discrimination claims.  So, Ms. Ames appealed to the Supreme Court of the United States and claimed that plaintiffs in reverse discrimination claims should not be required to establish a higher burden of proof than those filing non-reverse discrimination claims. 
     
    In its decision, the Supreme Court agreed with Ms. Ames. The Court based its ruling on its analysis that Title VII of the 1964 Civil Rights Act, which is the law that addresses discrimination based on sex, did not require a higher burden for reverse discrimination claims. Justice Ketanji Brown Jackson wrote the opinion regarding Ames and explained that the Civil Rights Act drew no distinction between majority-group plaintiffs and minority-group plaintiffs and Justice Brown Jackson identified that Congress “left no room for courts to impose special requirements on majority-group plaintiffs.”  Five of the thirteen circuits, including the district that Colorado is in (i.e., the 10th Circuit) previously employed this higher level of proof in reverse discrimination claims.  So, the Ames decision has the potential for significant impact. 
     
    Additionally, Justice Clarence Thomas, who wrote a supporting opinion in the Ames case, identified that he felt that the 50+-year-old McDonnell-Douglas standard lacked any support in the Civil Rights Act and Justice Thomas opined that he thought the Court would be willing to consider overruling the McDonnell-Douglas standard in the future.  Justice Thomas failed to identify what standard the Court would look to develop.
     
    The Colorado Legislature and Governor Polis head out on summer vacation.  With the end of the session and the passing of the deadline for Governor Polis to sign/veto the bills presented to him, these employment/human resource bills were signed into law:
     
    • Enforcement Wage Hour Law (HB25-1001).  PASSED AND SIGNED.  This bill raises the Colorado Department of Labor and Employment’s jurisdictional threshold amount from $7,500 to $13,000, increases the penalties that can be imposed on organizations that incorrectly classify a worker as an independent contract, and permits the CDLE to publish the names of all the names of all employers violating the Colorado wage law and report those organizations to any government body with authority to deny, withdraw, or otherwise limit or impose remedial conditions on the employer’s license, permit, registration, or other credential.
    • Local Governments Tip Offsets for Tipped Employees (HB25-1208).  PASSED AND SIGNED.  This Bill provides the opportunity for a city or county to increase the amount of tip offset associated with a local government’s minimum wage for restaurants where the city or county has raised the minimum wage above the state-required amount of $14.81 per hour. 
    • Workers' Compensation Benefits Proof Of Entitlement (HB25-1300).  PASSED AND SIGNED.  The bill creates the mechanism by which an injured worker may select the treating physician and requires the employer or insurer to choose the physician when an injured worker is unable or unwilling to select the treating physician.  In short, while current law permits organizations to offer injured workers a choice of four (4) physicians selected by the employer, this bill would require the employer to offer the employee a state-approved list of doctors to choose from.  This bill becomes effective in 2028.
    • Changes to Paid Family Medical Leave Insurance Program (SB25-144).  PASSED AND SIGNED.  With regard to the family and medical leave insurance program, the act extends the duration of paid family and medical leave, up to an additional 12 weeks, for a parent who has a child receiving inpatient care in a neonatal intensive care unit. The act also changes the premiums financing the program benefits by extending the current premium amount, 0.9% of wages per employee, through 2025 and setting the premium amount for the 2026 calendar year at 0.88% of wages per employee.
    • Concerning Limitations On Restrictive Employment Agreements (SB25-083). PASSED AND SIGNED.  This bill takes away an organization’s opportunity to have an agreement with a medical provider wherein upon leaving the organization, the provider must pay the organization for any damage suffered by the organization due to the provider leaving.  Further, the Bill also prohibits organizations from preventing providers from providing the provider’s current patients with information about where the provider plans to move the provider’s practice.
     
    In short, this year at the Colorado legislature was anything but quiet.