The Supreme Court recently heard a case involving employment discrimination, brought by Marlean A. Ames, a straight woman who lost promotions to gay workers at the Ohio Department of Youth Services. The court appears poised to deliver a modest ruling reinforcing that the civil rights law applies equally to all employees, regardless of sexual orientation. Notably, all parties, including conservative and legal representatives, agreed that a lower court had unfairly imposed a higher burden on majority group plaintiffs. The case raises significant issues about workplace discrimination standards and has potential implications for future diversity-related litigation.
The Supreme Court reviewed arguments on Wednesday regarding an employment discrimination case initiated by a straight woman who lost job opportunities to gay individuals on two occasions. This case follows two years after the Supreme Court invalidated race-conscious admissions policies in higher education during a time marked by the Trump administration’s vigorous initiatives aimed at eliminating diversity-promoting programs.
While certain conservative factions anticipated a pivotal ruling regarding workplace diversity efforts, indications pointed towards a more modest outcome reaffirming that a fundamental civil rights statute applies uniformly to all employees.
Indeed, the proceedings were distinguished by what Justice Neil M. Gorsuch termed a “radical consensus” among not only the justices spanning the ideological divide but also, notably, all the lawyers involved. They collectively asserted that an appeals court had erred significantly in imposing an increased burden on majority group members aiming to establish workplace discrimination.
The court appeared poised to deliver a succinct and potentially unanimous verdict favoring the plaintiff, Marlean A. Ames. Justice Brett M. Kavanaugh expressed his expectation of “a very brief opinion stating that discrimination based on sexual orientation, whether you’re gay or straight, is prohibited, and the rules apply equally.”
Ms. Ames had a decade-long career with the Ohio Department of Youth Services, which manages certain aspects of the state’s juvenile corrections system. In 2014, she advanced to oversee a program focused on addressing prison rape. Five years later, she pursued a promotion.
Her supervisors declined her request, citing a lack of vision and leadership abilities, ultimately awarding the promotion to a less experienced gay woman who, unlike Ms. Ames, did not hold a college degree.
Following the denial of her promotion, her supervisors removed her from her current position, expressing doubts about her leadership capacity and offering her a demotion that came with a significant pay reduction. She was replaced by a gay man with less experience.
Ms. Ames pursued legal action under a federal civil rights law prohibiting workplace discrimination based on various characteristics, including sex. (In 2020, the Supreme Court determined that sexual orientation discrimination is a variant of sex discrimination under civil rights law.)
The law, Title VII of the Civil Rights Act of 1964, does not differentiate based on whether the discrimination claimant belongs to a majority group. Nonetheless, some courts have mandated that such plaintiffs demonstrate an extra element if direct evidence of discrimination is absent: “background circumstances that support the suspicion that the defendant is that unusual employer who discriminates against the majority.”
Lower courts ruled against Ms. Ames based on this requirement. The U.S. Court of Appeals for the Sixth Circuit, located in Cincinnati, stated she could have satisfied the “background circumstances” criterion by demonstrating that “a member of the relevant minority group (in this instance, gay individuals)” was involved in employment decisions regarding her or by providing statistical evidence.
However, the appeals court concluded that Ms. Ames failed to provide either form of evidence. (In the lower court, she claimed that both supervisors who enacted unfavorable employment decisions against her were straight. Upon appeal, she argued that a gay supervisor also played a part, but the appeals court ruled this argument was forfeited due to her timing.)
Conservative legal organizations have rallied behind Ms. Ames’s case, with the Biden administration also backing her stance by submitting a brief in her favor.
During the arguments on Wednesday, Ashley Robertson, an attorney for the Trump administration, echoed this position, dismissing the appeals court’s ruling. She remarked that it effectively conveyed: “Disclose your race, and I’ll dictate the amount of evidence you must present.”
T. Elliot Gaiser, Ohio’s solicitor general representing the agency that employed Ms. Ames, faced the challenging task of advocating for his case while distancing himself from the appeals court ruling he was defending.
Mr. Gaiser stated that “Ohio concurs that it is unjust to hold certain litigants to a higher standard based on their protected characteristics.”
Justice Elena Kagan appeared surprised and inquired whether the appeals court’s ruling was flawed.
Mr. Gaiser affirmed, indicating that “the premise of holding individuals to different standards due to their protected characteristics is incorrect.”
He noted that Ms. Ames could not fulfill the usual requirements placed on plaintiffs in employment discrimination cases, asserting, “She failed to show that anyone acted with motivation based on sexual orientation or even that they were aware of her sexual orientation.”
Several justices conveyed that these arguments ought to be resolved in the lower courts.
Justice Kagan clarified that the sole question the Supreme Court had agreed to deliberate was “whether a plaintiff from a majority group must provide more evidence than a plaintiff from a minority group, specifically, whether a straight individual must present more than a gay individual.”
Throughout the proceedings, the involved parties treated the matter as a technical issue, largely disconnected from the ongoing broader discussion surrounding diversity programs—a debate that has long polarized the public and intensified with the Trump administration’s emphasis on dismantling diversity, equity, and inclusion initiatives in both governmental and private sectors.
Nevertheless, conservative legal factions submitted supporting briefs challenging the idea that discrimination against white employees, straight individuals, and men is in any way uncommon.
“The proliferation of D.E.I. ideology and racial preferences signifies that discrimination is regrettably prevalent today,” asserted a brief from the Pacific Legal Foundation, a libertarian organization.
Conversely, a brief filed by the NAACP Legal Defense and Educational Fund emphasized that the justices should consider Title VII’s historical context and objectives, which primarily focused on historically marginalized minorities. “The notable lack of extensive discrimination directed at certain majority groups, such as white individuals and straight individuals,” the brief stated, “is well-documented and should be viewed as a significant consideration.”
Only Justice Samuel A. Alito Jr. briefly addressed these topics, acknowledging that “the rule applied by the Sixth Circuit seemed to stem from an assumption regarding the typical behavior of most employers,” and noted that while this intuition may have been reasonable in 1973, it might no longer hold true today.
Lawyers representing local governments raised a separate concern, contending that a favorable ruling for Ms. Ames would lead to “a relaxed standard likely to unleash a wave of lawsuits.”
Justice Amy Coney Barrett posed queries regarding what she termed “a floodgate concern,” yet seemed reassured by a response from Xiao Wang, an attorney representing Ms. Ames.
He indicated that more than half of the nation’s federal appeals courts do not impose a heightened burden on majority group members, asserting, “we have not observed those circuits experiencing any semblance of a surge in litigation.”