The Supreme Court appeared ready on Wednesday to make it easier for workers to sue over employment discrimination, signaling a shift in how courts handle claims from white, male, and straight employees.
During oral arguments, the justices seemed inclined to strike down a legal standard used by many lower courts that requires majority-group plaintiffs to meet a higher burden of proof than what plaintiffs from historically marginalized groups have to satisfy.
The case centers on Marlean Ames, an Ohio woman who sued after being removed from her job as an administrator at the Ohio Department of Youth Services corrections agency. She alleged that she was replaced by a younger gay man and later passed over for another management role given to a lesbian woman who had not initially applied, claiming it violated the Title VII of the Civil Rights Act.
Ames’s lawsuit was dismissed before trial because she could not satisfy the “background circumstances” test, which requires white, male, or straight plaintiffs to prove their employer is unusually biased against majority groups. This standard is used in nearly half of the country’s appeals courts, while others do not apply the same standard, leading to a series of circuit splits over the precedent.
Several justices, including some Democratic-appointed ones, questioned the fairness of this requirement. Justice Sonia Sotomayor noted Ames’s strong performance record and the circumstances of her dismissal. There’s “something suspicious about that,” she said. “It certainly can give rise to an inference of discrimination.”
The court’s Republican-appointed justices also appeared skeptical of the current framework. Justice Neil Gorsuch stated, “We are in radical agreement,” indicating broad support for eliminating the stricter burden on majority-group plaintiffs. Justice Brett Kavanaugh suggested a narrow ruling that simply states the legal standard for proving discrimination should be the same for all employees.
The NAACP Legal Defense and Education Fund defended the existing standard in a friend-of-the-court brief, arguing that historical patterns of discrimination justify different thresholds for proving bias. However, the justices appeared largely aligned in their skepticism of such distinctions.
Ames’s case has been referred to in court filings as a type of “reverse discrimination” case because it implicates a majority-group plaintiff. But America First Legal senior counsel Nicholas Barry likened that term to a misnomer that “we shouldn’t use as advocates.” AFL, which has been at the forefront of legal battles targeting corporate diversity, equity, and inclusion (DEI) efforts since the Supreme Court struck down affirmative action for colleges in 2023, submitted an amicus brief to the high court supporting Ames’s case.
“If an employer is going to discriminate against someone because they’re white, that’s just discrimination. It’s not different,” Barry said during a virtual panel hosted by the Federalist Society.
The same sentiment was expressed during oral arguments by Thomas Gaiser, an attorney for Ohio who argued that Ames failed to show “the prima facie step that there [was] an inference of discrimination” in her complaint.
“I think the idea that you hold people to different standards because of their protected characteristics is wrong. And if there’s any upshot from this case, let reverse discrimination completely fall out of the Federal Reporter,” Gaiser told the justices.
Other legal experts say a ruling in Ames’s case in her favor has the potential to represent a turning point in the legal battles implicating corporate DEI efforts.
Levinson Werner, an employment lawyer with Lowenstein Sandler, told the Washington Post she believes employers are monitoring the case as part of their risk assessments for pruning diversity initiatives in the legal and regulatory landscape.
SUPREME COURT HEARS REVERSE DISCRIMINATION CASE WITH IMPLICATIONS FOR DEI
In response to a question from the Washington Examiner, Barry said “I do think that a favorable ruling here will impact corporate boardrooms in some way.”
A ruling in the case is expected by the summer.
