WASHINGTON − The Supreme Court on Wednesday seemed ready to rule − possibly unanimously − that members of a majority group do not face an extra hurdle when alleging “reverse discrimination” in the workplace.
“We’re in radical agreement today on that, it seems to me,” Justice Neil Gorsuch said.
The case was being argued amid a raging battle in the country over diversity, equity and inclusion programs.
But the justices steered clear of that larger debate and focused solely on the appeal of an Ohio civil servant, a heterosexual, who said she lost two jobs to gay co-workers she felt were less qualified.
When Marlean Ames tried to sue the Ohio Department of Youth Services, lower courts said she’d failed to provide “background circumstances” showing the department was “that unusual employer who discriminates against the majority.”
That’s a test created in 1981 by a federal appeals court that is used by some, but not most, of the federal courts when assessing claims brought under Title VII of the Civil Rights Act of 1964. The U.S. Court of Appeals for the D.C. Circuit said in 1981 that while white people are covered by the Civil Rights Act, it defied common sense “to suggest that the promotion of a black employee justifies an inference of prejudice against white co-workers in our present society.”
`Equal justice under law’
But the law itself, which bans discrimination based on “race, color, religion, sex or national origin,” doesn’t set different thresholds for members of minority and majority groups.
Ames’ lawyers told the justices her suit would not have been dismissed at this stage of the litigation if she had been gay and the employees who got the jobs she wanted were not.
“At bottom, all Ms. Ames is asking for is equal justice under law,” Xiao Wang, one of her lawyers, told the court in referring to the phrase that appears above the main entrance to the Supreme Court. “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.”
Marlean Ames sits for a portrait at the law office of Edward Gilbert, her lawyer, in Akron, Ohio, on Feb. 13, 2025.
Ohio won’t defend lower court’s reasoning
T. Elliot Gaiser, Ohio’s solicitor general, agreed that Ames shouldn’t face an extra hurdle.
“But that is not what happened in this case,” Gaiser said.
Instead, he contended, Ames failed to show enough evidence that her sexual orientation played any role in the hiring decisions.
Gaiser said the Cincinnati-based 6th U.S. Circuit Court of Appeals was correct to say her suit could not move forward to a jury trial, even if the court’s explanation for the dismissal implied Ames was held to a higher standard.
“We’re not defending the exact language there,” he said.
But Justice Elena Kagan called that language “absolutely critical” and pointed out it was the reason the court took the case.
Gaiser said that the court should still make clear that the burden can’t solely be on the employer to show why an act wasn’t discriminatory.
Opening the floodgates to litigation?
Justice Amy Coney Barrett asked Ames’ attorney whether there’s a legitimate concern that siding with her would make it too easy for workers to sue.
Wang said that wouldn’t happen because the federal courts that don’t use the “background circumstances” test haven’t seen a “flood of litigation.”
Still, Jonathan Segal, a labor law expert at Duane Morris, predicted a ruling for Ames will boost the already increasing number of reverse discrimination suits.
“On a broader level, the ruling will reinforce to the public that the law prohibits discrimination equally against majority and minority groups alike,” he said in a statement after listening to the oral arguments.
Ashley Robertson, an attorney for the Department of Justice who was given time to make the federal government’s case for why the lower courts got the law wrong, said it would be helpful for the Supreme Court to clarify that evidentiary standards are the same for members of majority and minority groups.
But Robertson emphasized that doesn’t mean the cases should always go to trial. Employers are usually able to give an alternative explanation for a challenged action and that can be difficult for the worker to rebut, she said.
Ohio’s explanation for Ames’ treatment
In Ames’ case, the Ohio Department of Youth Services said she was passed over for a promotion because she lacked the necessary vision and leadership skills.
Officials said she was then demoted from her administrator position because she wouldn’t bring a proactive approach to the department’s increased emphasis on combatting sexual violence in the juvenile corrections system.
A decision in Ames v. Ohio Department of Youth Services is expected by summer.
This article originally appeared on USA TODAY: Supreme Court likely to side with woman in reverse discrimination case
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