The Supreme Court seems all but certain to side with an Ohio woman who lost a “reverse discrimination” lawsuit against her employer. The case revolves around her claim that her gay boss declined to promote her, a decision that may ease the path for some White and straight employees to win similar claims. This development comes at a time when President Donald Trump has politicized workplace diversity efforts. Both the court’s conservative and liberal justices, along with the attorneys arguing the case, appeared to agree during brief arguments on Wednesday that some courts are misinterpreting the law and creating unfair barriers against discrimination suits filed by majority group members.
Marlean Ames began her career with Ohio’s state government in 2004, steadily advancing through the ranks at the Department of Youth Services. She alleges that in 2017, after starting to report to a gay boss, she was passed over for a promotion that was given to another gay woman. Ames is challenging a requirement enforced by five appeals courts across the nation. This requirement mandates that “majority” Americans raising discrimination claims must demonstrate “background circumstances” to pursue their suits. For example, a plaintiff might need to provide statistical evidence of a pattern of discrimination against majority members. Ames was unable to meet this requirement and thus lost her case.
This requirement stems from the belief that it is unusual for an employer to discriminate against a majority group member. However, neither federal anti-discrimination law nor Supreme Court precedent endorses creating different requirements for a White employee and a Black employee to file a discrimination suit. Ames’ case reached the Supreme Court’s docket last fall, shortly before Trump’s election and his subsequent pledge to restrict diversity and inclusion efforts in both the government and private sectors. Nonetheless, Ames’ case is more procedural, unlike the broader political issues that have led to other lawsuits.
Interestingly, both the Trump and Biden administrations agreed that the 6th US Circuit Court of Appeals’ decision against Ames should be reconsidered. During the court's session, the broader political debates over diversity initiated by Trump did not surface. The justices quickly moved through their questioning of attorneys representing Ames and the federal government. They then focused intensely on T. Elliot Gaiser, the lawyer representing Ohio.
Justice Brett Kavanaugh, a conservative, challenged the state solicitor general on the appeals court opinion section that required Ames to show “background circumstances” to win her suit. “You agree that those passages are wrong,” he pressed. Gaiser admitted, “We’re not defending the exact language there.” Justice Elena Kagan, from the court’s liberal wing, expressed incredulity, questioning the defense of “something like that language.” Kavanaugh continued to press Gaiser on whether Ohio agreed with Ames that the central point of the appeals court decision was incorrect. Gaiser concurred but urged the justices to craft an opinion that would guide lower courts to avoid excessively favoring employees in similar suits.
A majority of the court appeared unreceptive to Ohio's argument. One telling sign of the court's readiness to side with Ames was the justices wrapping up their arguments five minutes early, a virtually unheard-of occurrence. This case could set a new precedent in reverse discrimination lawsuits, affecting how similar cases are approached in the future.
