ARGUMENT ANALYSIS

Court appears likely to side with straight woman in reverse discrimination suit

The Supreme Court on Wednesday was sympathetic to an Ohio woman who alleges that she was the victim of reverse discrimination. Marlean Ames contends that she lost out on a promotion that she wanted, and then was demoted, simply because she is straight. With Ames and her employer in what Justice Neil Gorsuch described as “radical agreement” that federal employment laws impose the same requirements on all plaintiffs, a solid majority (if not all) of the justices appeared ready to overturn a ruling by a federal appeals court that required Ames to meet a higher bar for her case to go forward than if she had been a member of a minority group.

Ames went to work in 2004 as an executive secretary at the Ohio Department of Youth Services. Ten years later, she was appointed as a program administrator. In a performance evaluation in 2018, Ames’s new supervisor, Ginine Trim – who is gay – indicated that Ames met expectations in 10 categories and exceeded them in an 11th.

But in 2019, she applied for a new position that she did not get. Soon after she was demoted to a previous job, where she earned just over half the hourly rate she had been making.

Ames then went to federal court in Ohio, contending that she had been the victim of discrimination based on her sexual orientation, in violation of federal employment laws. She contended that the department had hired a gay woman instead of her for a promotion for which she had applied. Moreover, she alleged, she had been demoted to a job that paid considerably less than her previous salary, with the department hiring a gay man to replace her.

The U.S. Court of Appeals for the 6th Circuit threw out Ames’s sexual orientation claim. It explained that because she is straight, she was required to show “background circumstances” to support her allegations of reverse discrimination. And although plaintiffs usually make this kind of showing, the court of appeals suggested, with evidence that a member of a minority group made the allegedly discriminatory decision, or with evidence demonstrating a pattern of discrimination against members of the majority group, Ames cannot do either. The decision-makers in her case – the people who hired someone else for the bureau chief job and who demoted her – were also straight, and there is no “pattern” of reverse discrimination beyond her own case, the court of appeals reasoned.

Representing Ames, Xiao Wang urged the justices to reverse the 6th Circuit’s decision. He told the justices on Wednesday that federal employment discrimination laws seek “to eradicate all discrimination in the workplace.” Requiring members of a majority group to show “background circumstances,” he contended, instead perpetuates discrimination.

Justice Amy Coney Barrett asked Wang about concerns that a ruling in Ames’s favor would open the door to more lawsuits under federal employment discrimination laws, by making it easier to bring reverse discrimination cases.

Wang countered that more than half of the federal courts of appeals currently do not apply the “background circumstances” rule but have not seen the “floodgates open.”

Ashley Robertson, an assistant to the U.S. solicitor general who argued as a “friend of the court,” echoed Wang’s contention that eliminating the “background circumstances” rule would not lead to a flood of new cases. In the government’s experience as an employer, Robertson told Barrett, a higher standard like the “background circumstances” rule isn’t necessary to weed out meritless cases.

Representing the Ohio Department of Youth Services, Ohio Solicitor General T. Elliot Gaiser asked the justices to leave the ruling in place. Regardless of how the court of appeals might have framed the standard that Ames had to meet, he contended, Ames had not provided enough evidence for her case to go forward at this stage. And if she prevails, he cautioned, federal employment laws will “presume liability for employers.”

But the justices focused on the 6th Circuit’s opinion, which they interpreted as imposing an additional requirement on Ames because she is straight.

Barrett pressed Gaiser, asking whether he agreed that whether plaintiffs are straight or LGBTQ+, they face the same requirements under federal employment discrimination laws.

Gaiser agreed, but he raised broader concerns about the multi-part test that courts use in employment discrimination cases in which the plaintiff does not have direct evidence of discrimination.

Justice Elena Kagan resisted Gaiser’s efforts to turn the justices’ attention to that issue. The question that the court agreed to decide, she stressed, “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.” Ames and the federal government say that the answer is no, Kagan observed, and now Gaiser agrees. “Why would we use this case, which is about whether a majority-group plaintiff has an extra burden,” Kagan concluded, “to opine on a range of things that have nothing to do” with the question that the justices agreed to take up?

Justice Neil Gorsuch appeared to agree. What would be wrong, he asked Gaiser, with a decision by the court holding that everyone should be treated equally in making out their basic employment discrimination case, and then the state can make its other arguments when the case returns to the lower courts?

A decision in the case is expected by summer.

This article was originally published at Howe on the Court.