The Supreme Court on Wednesday appeared to lean toward reviving a straight woman’s “reverse discrimination” case brought over claims she was passed over for a promotion and demoted in favor of gay colleagues.
Such a ruling would lower the legal hurdle in many areas of the country for white and straight employees to bring discrimination suits against their employers.
Lower courts ruled against Marlean Ames, who has worked for the Ohio Department of Youth Services for two decades, by finding she must provide more evidence than minority groups to prove her claims, because she is part of a majority group.
At oral arguments Wednesday, a majority of the Supreme Court appeared sympathetic toward Ames’s argument that the additional “background circumstances” requirement goes beyond what Title VII of the Civil Rights Act of 1964 requires.
“At the heart of this case, at bottom, all Ms. Ames is asking for is equal justice under law,” said Xiao Wang, Ames’s attorney. “Not more justice, not more justice, but certainly not less and certainly not less because of the color of her skin or because of her sex or because of her religion,”
Conservative Justice Amy Coney Barrett at one point asked Ames’ attorney to respond to Ohio’s contention that lowering the legal standard “is just going to throw the door wide open to Title VII suits because now everybody can say, ‘hey, this was discrimination on the basis of race, gender, et cetera?’”
“I don’t think that contention is well taken,” Wang responded.
The case comes amid the backdrop of President Trump’s efforts to broadly crack down on support for diversity, equity and inclusion (DEI) programs. Under both the Biden and Trump administrations, the Justice Department has backed Ames.
Ames started working at the youth services department as an executive secretary in 2004 and received positive reviews and multiple promotions. In 2019, Ames unsuccessfully applied for a promotion to bureau chief. The position remained open for months and was given to a gay woman who did not apply for the job.
Afterwards, Ames says, the department demoted her back to executive secretary and hired a gay man who hadn’t formally applied to take her existing role.
The 6th U.S. Circuit Court of Appeals agreed that Ames’s case would meet the usual requirements for establishing a discrimination case if she was part of a minority group. But the court still ruled against her.
Like several other federal appeals courts, the 6th Circuit has held that majority groups must, in addition to those normal requirements, prove “background circumstances” that show theirs is the unusual case where an employer is discriminating against the majority.
“Suppose that the plaintiff said: Look, they discriminated against me because I’m heterosexual, and here are five other instances where they did the same thing,” conservative Justice Samuel Alito pressed Ohio’s attorney.
“Is that going to come in? Is the court going to have mini-trials or mini-summary judgment proceedings on all of these other alleged instances?” Alito continued.
T. Elliot Gaiser, Ohio’s solicitor general, urged the justices to uphold the lower court’s ruling.
“Ohio agrees it is wrong to hold some litigants to a higher standard because of their protected characteristics. But that is not what happened in this case,” Gaiser said.
A decision in the case, Ames v. Ohio Department of Youth Services, is expected by early summer.
