SCOTUS and "reverse discrimination" against straight people

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The Supreme Court on Wednesday appeared likely to allow a woman to pursue a claim that she was discriminated at work because she is straight.

The court's ruling could lower the bar at least in some parts of the country for people belonging to majority groups to bring so-called reverse discrimination claims.

Marlean Ames brought a claim against the Ohio Department of Youth Services under Title VII of the Civil Rights Act, which prohibits sex discrimination in the workplace, after a lesbian woman obtained a promotion she was also seeking. She was then demoted, and her old position was taken by a gay man.

Ames had worked at the department since 2004. Starting in 2017, she began reporting to a lesbian woman. She was denied the promotion she sought two years later and demoted soon after that.

Lower courts, including the Cincinnati-based 6th U.S. Circuit Court of Appeals, ruled for the state agency. Ames then turned to the Supreme Court.

Her lawyers are challenging precedent in some lower courts that says someone from a “majority group” has to meet a higher bar for a case to move forward than someone from a minority group.

Those courts, including the 6th Circuit, say such a plaintiff has to present “background circumstances” to show that the defendant is “that unusual employer who discriminates against the majority,” Ames’ lawyers said in court papers.

There was broad agreement in the courtroom during Wednesday’s oral argument, even from the lawyer representing Ohio officials, that the rule is not consistent with federal employment law. The ruling could be unanimous, based on the questions asked by both conservative and liberal justices.

Justice Amy Coney Barrett summed up the view from the bench when she proposed that the court rule for Ames based on the premise, as she put it, that "it doesn't matter if she was gay or whether she was straight, she would have the exact same burden and be treated the exact same way under Title VII."

Justice Neil Gorsuch appeared to agree, saying a narrow ruling in Ames' favor on that point would be a "wise course" to follow. He noted that there was "radical agreement" in the courtroom.

Ohio Solicitor General T. Elliiot Gaiser, pressed by justices on his defense of the lower court ruling in favor of the state, ultimately acknowledged that "everyone here agrees everyone should be treated equally."

It appears likely the court will send the case back to lower courts for further litigation on whether Ames’ case can move forward.

Justice Sonia Sotomayor indicated Ames may have a valid claim, saying there was “something suspicious” about what happened.

If the court rules in Ames' favor, it could affect workplace discrimination claims of all kinds. For example, it could make it easier for white people who claim they face racial discrimination as a result of diversity, equity and inclusion, or DEI, policies.

America First Legal, a conservative group with close ties to the Trump administration, filed a brief in Ames' case citing cases it has brought against various companies, including Starbucks and IBM, alleging race and sex discrimination.

"Where applied, the 'background circumstances' rule is an atextual, unconstitutional, and arbitrary obstacle to the vindication of employees’ nondiscrimination rights," the group's lawyers wrote.

Before President Joe Biden left office, his administration had filed its own brief saying the "background circumstances" test should be ditched.

The state has argued that Ames failed to show she had been discriminated against.

Ames was demoted because new leadership in the agency wanted to restructure its operations to prioritize sexual violence in the juvenile corrections system. Ames led a program aimed at combating rape in prison but was seen as difficult to work with, according to the state's court papers.