Supreme Court seems poised to rule for Ohio woman alleging “reverse discrimination”

Washington — The Supreme Court on Wednesday appeared poised to side with an Ohio woman in her bid to revive a lawsuit alleging “reverse discrimination” after she said she was denied a promotion and demoted because she is straight.

The case, known as Ames v. Ohio Dept. of Youth Services, centers on what a plaintiff alleging a violation of Title VII of the Civil Rights Act must show to make an initial case of employment discrimination. 

Marlean Ames, the woman who brought the case, argues that a “background circumstances” requirement adopted by some lower courts unfairly imposes a higher burden on her as a heterosexual woman. The standard requires plaintiffs who are members of a majority group to put forth more evidence than those in a minority group in order for their case to proceed.

Ames seems likely to prevail in her effort to have her case restored, with most — if not all — of the justices appearing to agree with her argument that federal employment law does not require her to meet a higher bar just because she is a member of a majority group as a heterosexual woman. The Supreme Court could send the case back to the lower courts for additional proceedings.

Justice Amy Coney Barrett said that regardless of whether Ames is gay or straight, “she would have the exact same burden” and be treated the same under Title VII. Justice Brett Kavanaugh told Xiao Wang, who argued on behalf of Ames, that they want the court to write an opinion that says “the rules are the same.”

The questions posed by the justices to Gaiser prompted acknowledgement that there is agreement among all parties — lawyers for Ames, the Justice Department and the Ohio Department of Youth Services, Ames’ employer — that all plaintiffs should be treated the same, regardless of whether they are in a majority group or minority group.

The Supreme Court, which has a 6-3 conservative majority, is reviewing the case as President Trump has taken sweeping actions to dismantle diversity, equity and inclusion, or DEI, programs and policies throughout the federal government and fired workers overseeing the initiatives.

In the private sector, large companies like McDonald’s, Ford and Walmart have walked back their DEI initiatives in recent months in the wake of the Supreme Court’s 2023 decision ending affirmative action in college admissions. That landmark ruling prompted more lawsuits from conservative groups targeting diversity initiatives at corporations.

Allegations of reverse discrimination

Ames started working at the Ohio Department of Youth Services, the state’s juvenile corrections system, in 2004 as an executive secretary and became a program administrator in 2014. During her time in that role, she received positive performance reviews, according to court filings. 

Ames applied for a promotion to bureau chief of quality assurance and improvement in 2019, but didn’t get the job. Her supervisor, Ginine Trim, who is gay, said Ames and two others who applied failed to lay out their vision for the role, according to court filings from Ames’ legal team.

The position remained unfilled for months and eventually was offered to a gay woman who had been with the department for less time than Ames, her lawyers said in court papers. The woman didn’t interview or apply for the job, and was less qualified than Ames, according to the attorneys.

After Ames was denied the promotion, she was removed from her position as program administrator and told she could either return to her job as executive secretary or be fired. Accepting the demotion, though, would mean a significant pay cut — from $47.22 an hour to $28.40, according to court filings.

Still, Ames chose to go back to her role as executive secretary and was replaced as program administrator by a gay man, her lawyers said.

Ames sued the Department of Youth Services and alleged violations of Title VII, which prohibits employment discrimination based on race, religion, national origin and sex, which includes sexual orientation. Ames argued the department discriminated against her on the basis of sexual orientation.

A federal district court ruled for the Ohio Department of Youth Services, finding that the department offered “legitimate, nondiscriminatory business reasons” for passing Ames over for the promotion. The court also concluded that she failed to satisfy the “background circumstances” requirement.

Imposed by some courts, the standard requires a plaintiff who is a member of a majority group to show “background circumstances” that “support the suspicion that the defendant is that unusual employer who discriminates against the majority,” or engages in reverse discrimination.

Plaintiffs can make that showing by presenting evidence that a member of the relevant minority group — gay people, in Ames’ case — made the employment decision at issue, or by presenting statistical evidence demonstrating a pattern of discrimination by the employer against members of a majority group.

Ames asked the U.S. Court of Appeals for the 6th Circuit to review the district court’s decision. The appeals court also found that she failed to satisfy the “background circumstances” requirement and threw out her case.

The three-judge panel first said that the decisions about Ames’ positions were made by the department’s director and assistant director, who are heterosexual. The 6th Circuit also found that Ames’ only evidence of a pattern of discrimination was her own experience.

The Supreme Court agreed in October to take up Ames’ case. In filings, her lawyers argued that the “background circumstances” test infringes on the text of Title VII, Supreme Court precedent and the Equal Employment Opportunity Commission’s own practices.

During arguments before the high court, Wang said he and his client are asking for “equal justice under the law.”

But lawyers for the Ohio Department of Youth Services reiterated in a filing that the officials who made decisions about Ames’ employment are straight and provided a nondiscriminatory reason for replacing her as program administrator: concerns about her vision for the department.

None of the decision-makers knew Ames’ sexual orientation when she was denied the promotion and demoted, Gaiser told the justices.

Additionally, the state wrote in filings that the background circumstances rule is just another way of determining whether the circumstances surrounding an employment decision suggest that decision was because of a protected characteristic.

Ohio officials said the background circumstances standard protects against “meritless” Title VII claims, which can “impose ruinous costs, especially on smaller businesses, that ultimately reduce employment, incent automation, and inflate prices for consumers — or consume Ohioans’ tax dollars.”

Barrett questioned whether a decision in favor of Ames would “throw the door open” to more suits. Wang noted that only half the federal appeals courts apply the background circumstances rule.

During the arguments, Justice Sonia Sotomayor said that the circumstances surrounding the employment decisions about Ames, such as her years working at the Department of Youth Services and positive performance reviews, suggest “there’s something suspicious” about her getting passed over for the promotion. That could give rise to an inference of discrimination, she said.

Justice Ketanji Brown Jackson, meanwhile, said that the argument pressed by the Ohio Department of Youth Services indicates that a plaintiff who is a member of a majority group has to put forth all of their evidence at an initial stage in the proceedings.

In a friend-of-the-court brief filed in December, the Biden administration argued the 6th Circuit was wrong to apply a heightened requirement that it said would foreclose some claims that would satisfy Title VII’s standard for liability. The previous administration urged the Supreme Court to toss out the lower court’s decision and send the case back for more proceedings.

The Trump administration also urged the justices to toss out the 6th Circuit’s ruling. Ashley Robertson, assistant to the solicitor general, told the court that Title VII “draws no distinction” based on whether an employee alleging discrimination is a member of a majority or minority group.