A no-brainer for the Supreme Court

Of course, claims of discrimination against straights should be judged by the same standard as claims of discrimination against gays and lesbians.

Marlene Ames worked in an administrative job at a juvenile corrections facility in Ohio until she was demoted with a pay cut of $40,000. Her replacement was a gay man.

A few months later, Ames applied for a management position at the facility. That job went to a lesbian whom Ames says had not sought the position initially.

Ames sued over both decisions, alleging that she was discriminated against for being straight. Such discrimination is unlawful.

Ames lost in federal district court and on appeal. Both courts ruled that the bar for straight people who alleged discrimination is higher than for gays and lesbians. And they agreed that Ames’ claims did not reach that bar.

Today, the Supreme Court heard arguments in Ames’ case. According to the Washington Post: “The high court’s conservative supermajority and at least some of the liberal justices seemed receptive to arguments by Ames.”

They should be. Requiring plaintiffs like Ames to present extra proof of discrimination never made sense. Requiring it in this age of increased tolerance and DEI is absurd.

Let’s start with the basics. Gays and lesbians (as well as women alleging sex discrimination and blacks alleging race discrimination) can prove their claim either by showing direct evidence of discriminatory motive or through circumstantial evidence.

Because direct evidence is usually hard to come by, plaintiffs typically proceed, in the first instance, by showing that they are gay/lesbian (or female or black), that they were treated adversely (e.g. denied a job or fired), and that they were qualified for the position they sought or lost. This showing makes out a prima facie case of discrimination.

With such a showing, the burden shifts to the employer to present a legitimate non-discriminatory reason for the decision. Once the employer does that, the issue then becomes whether that reason is a pretext for discrimination. Here, the burden of persuasion is on the plaintiff.

This standard should apply to discrimination cases brought by all plaintiffs, including whites alleging race discrimination, men alleging sex discrimination, and strights alleging discrimination based on sexual preference. However, about half of the U.S. courts of appeals disagree.

They say that when a straight person (or a man in a sex discrimination case or a white alleging race discrimination) brings a claim, he or she must make an additional showing. He or she must present evidence of “background circumstances” supporting the view that “the defendant is that unusual employer who discriminates against the majority.” (Emphasis added) Typically, this means evidence that members of a minority group were the decision-makers or statistical evidence of a pattern of discrimination against a majority group in a particular workplace.

Note that the heightened test for “majority” plaintiffs is premised on the view that it is common for employers to discriminate against minority group members and “unusual” for them to discriminate against members of majority groups. This might have been true to some degree in the last century. But is there any empirical basis for this assumption in 2025?

I doubt it. First, it seems obvious that prejudice against blacks, women, and gays/lesbians has diminished greatly in recent times. Second, we know that with the advent of DEI initiatives, employers are often looking to hire and promote minority group members. It might well be that, thanks to DEI, majority group members are losing out because of their race/sex/sexual preference more frequently than minority group members are.

That’s just an assumption, but so is the contrary view. Laws against discrimination should not be interpreted unequally based on old-time assumptions.

But even if one were to embrace such assumptions, it’s not clear why a heightened standard is needed to adjudicate claims of discrimination by majority group members. In my view, the burden-shifting approach to evaluating circumstantial evidence should still apply.

Take Ames’ case, for example. Under a traditional analysis, she can make out a prima facie case of discrimination. But that’s not the end of the matter. Her employer has asserted legitimate, non-discriminatory reasons for demoting and then not promoting her.

It argues that Ames lacked the skills and vision to effectively address sexual victimization in the state’s juvenile facilities. It argues, further, that Ames’ workplace demeanor was “abrasive” and that she did poorly in her interview for the management job. The candidates who got Ames’ former job and the position she later sought had skills and experience she lacked, her employer says.

Fine. If Ames can’t show that these reasons were pretexts for discrimination against her for being straight, she loses. But if she can meet her burden of proving pretext, I believe she has shown, circumstantially, that this is the “unusual” case in which the employer has discriminated against a majority group member.

I’ve gone fairly far into the weeds. Let’s step out of them. Common sense and notions of basic fairness (embodied in the Constitution) tell us that claims of discrimination should be analyzed the same way no matter which group the alleged victim belongs to.

This view is so basic that even the Biden administration adopted it. Its Department of Justice maintained in a friend of the court brief that the “background circumstances standard” has no basis in the text of Title VII and is unequal.

As noted, the Supreme Court seems to agree. So, apparently, did the attorney representing the employer (Ohio). Under questioning from Justices Kagan and Kavanaugh, he backed away from the “background circumstances” standard, focusing instead on arguing that Ames shouldn’t win even under the standard applied in suits by minority group members.

This prompted Justice Gorsuch to say, “we’re in radical agreement.” Let’s hope the Court rules unanimously for equal treatment of all discrimination claims in this no-brainer of a case.