The US supreme court justices on Wednesday appeared to lean toward making it easier for people from “majority backgrounds”, such as white or heterosexual people, to pursue workplace-discrimination claims, as they heard an appeal by an Ohio woman who claims she was denied a promotion and demoted because she is heterosexual.
The court heard oral arguments in a case that has the potential to transform workplace-discrimination claims and unleash a flood of lawsuits from white people, straight people and men.
Marlean Ames has brought an appeal to the highest court claiming that she was passed over for a job and demoted because she is straight. She says she was removed from her position as an administrator in a state agency for youth services in Ohio and replaced by a gay man.
Her petition to the supreme court challenges the way that such “reverse discrimination” cases have been handled in lower courts. Previous rulings have determined that people from majority groups – such as men, white and straight people – have to meet a higher legal bar than those from minority groups in proving workplace bias.
Ames asked the highest court to revive her civil rights lawsuit against her employer, Ohio’s department of youth services, after lower courts sided with the state. The justices – liberal and conservative alike – on Wednesday seemed poised to throw out a ruling against Ames by the Cincinnati-based sixth US circuit court of appeals and direct lower courts to reconsider the matter.
Stakes in the case are high. Should the supreme court side with Ames, 60, as is widely expected, the floodgates would be opened to discrimination claims from an array of majority groups.
Programs that attempt to increase diversity, equity and inclusion to better serve underrepresented minority demographics among the workforce could be further battered at a time when DEI is already under sustained assault from the Trump administration.
The politically charged nature of the case was underlined when America First Legal, the group founded by Trump’s deputy chief of staff at the White House, Stephen Miller, filed an amicus brief with the supreme court supporting Ames’s claim. It argued that many leading companies “illegally awarded jobs, special benefits, bonuses, and other career opportunities to minorities while openly excluding whites (and sometimes Asians), heterosexuals, and males”.
Groups opposing the Ames suit have countered that Black people and other minority groups are much more likely to be the subject of bias at work and that reverse discrimination was rare.
Ames’s case has been brought under Title VII of the Civil Rights Act, the 1964 statute that was one of the crowning achievements of the civil rights movement.
At issue is the requirement by some US courts that plaintiffs from majority groups provide more evidence than minority plaintiffs to show they faced discrimination under Title VII, the law that prohibits discrimination based on characteristics such as race, religion, national origin and sex – including sexual orientation.
These courts have said the higher bar is justified because discrimination against those workers is relatively uncommon.
The sixth circuit concluded in 2023 that Ames had not shown the required “background circumstances” indicating that a defendant accused of workplace bias is “that unusual employer who discriminates against the majority”.
Ames said she had a gay supervisor in 2019 when she was passed over for a promotion in favor of a gay woman and demoted in favor of a gay man – both of whom, she asserted, were less qualified than she was. She sued in 2020 seeking monetary damages.
Ashley Robertson, arguing for the US justice department, said a ruling favoring Ohio would risk screening out meritorious discrimination cases. The burden on plaintiffs is already high, Robertson said, and the 6th circuit in this case added a requirement that many plaintiffs cannot meet.
Conservative justice Amy Coney Barrett asked Robertson to address Ohio’s concern that a ruling in favor of Ames would open a floodgate of workplace-discrimination suits. Robertson said the US Equal Employment Opportunity Commission (EEOC), the federal agency that enforces laws against job bias, dropped the heightened standard nearly two decades ago and that other mechanisms exist for the EEOC and courts to screen out frivolous cases.
“We share Ohio’s concerns with making sure that meritless cases don’t reach trial,” Robertson added. “We simply think that raising the standard at step one would be exactly the wrong way to address that concern.”
Liberal justice Ketanji Brown Jackson suggested that the position being argued by Elliot Gaiser, the lawyer for the Ohio department of youth services, would impose too heavy a burden on plaintiffs at the initial stage of their legal proceeding.
Gaiser said that Ohio “agrees it is wrong to hold some litigants to a higher standard because of their protected characteristics” but said that is not what happened in this case. Gaiser said Ames failed to establish that anybody was motivated by sexual orientation in making the employment decisions that affected her “or even knew her sexual orientation – nor the orientation” of the two gay employees.
Liberal justice Elena Kagan said Gaiser seemed to agree with Ames on the case’s central issue. “The question presented is whether a majority-group plaintiff has to show something more than a minority-group plaintiff – here, whether a straight person has to show more than a gay person,” Kagan said. “Everybody over here says: ‘No.’ You say: ‘No,’ too.”
Kagan told Gaiser he was now asking the justices to weigh in on various other matters “that are really not intertwined at all with that question”.
Reuters contributed reporting
