U.S. Supreme Court Poised To Rule in Favor of White Woman in Discrimination Case

February 26, 2025 Betsy Combier ADVOCATZ 0
Marlean Ames brought a claim against the Ohio Department of Youth Services under the section of the Civil Rights Act that prohibits sex discrimination in the workplace.Megan Jelinger / Reuters

US Supreme Court seems poised to lower bar for ‘reverse discrimination’ suits

By ,  and , Reuters, February 26, 2025

  • Woman claims workplace bias because she is heterosexual
  • Lower courts ruled against plaintiff in bias lawsuit
  • Case could lower bar for “reverse” discrimination suits
WASHINGTON, Feb 26 (Reuters) – U.S. Supreme Court justices appeared to lean on Wednesday toward making it easier for people from “majority backgrounds,” such as white or straight people, to pursue workplace discrimination claims, as they heard an appeal by an Ohio woman who claims she was denied a promotion and demoted because she is heterosexual.
The justices heard arguments in a case in which plaintiff Marlean Ames has asked them to revive her civil rights lawsuit against her employer, Ohio’s Department of Youth Services, after lower courts sided with the state. The justices – liberal and conservative alike – seemed poised to throw out a ruling against Ames by the Cincinnati-based 6th U.S. Circuit Court of Appeals and direct lower courts to reconsider the matter.
Ames, 60, has argued that she was discriminated against in violation of a landmark federal anti-discrimination law. Ames said she had a gay supervisor in 2019 when she was passed over for a promotion in favor of a gay woman and demoted in favor of a gay man – both of whom, she asserted, were less qualified than her. Ames sued in 2020 seeking monetary damages.
A ruling in favor of Ames could bolster the growing number of lawsuits by white and straight workers claiming illegal bias – often called “reverse discrimination” – amid a backlash by conservatives and Republicans against initiatives promoting diversity, equity and inclusion in the workforce. On his first day back in office in January, Republican President Donald Trump ordered the dismantling of such policies in federal agencies and encouraged private companies to follow suit.
At issue in the Ames case is the requirement by some U.S. courts that plaintiffs from majority groups provide more evidence than minority plaintiffs to show they faced discrimination under Title VII of the Civil Rights Act of 1964. This law prohibits discrimination based on characteristics such as race, religion, national origin and sex – including sexual orientation.
These courts have said the higher bar is justified because discrimination against those workers is relatively uncommon. The 6th Circuit concluded in 2023 that Ames had not shown the required “background circumstances” indicating that a defendant accused of workplace bias is “that unusual employer who discriminates against the majority.”
Xiao Wang, the lawyer arguing for Ames, said the Supreme Court has decided in prior rulings that “Title VII aims to eradicate all discrimination in the workplace.”
“But the background circumstances rule doesn’t do that. It doesn’t eradicate discrimination,” Wang said. “It instructs courts to practice it by sorting individuals into majority and minority groups based on their race, their sex or their protected characteristic” and applying an evidentiary presumption against plaintiffs “based solely on their being in a majority group, however you define it.”

‘THE WRONG WAY’

Ashley Robertson, arguing for the U.S. Justice Department, said a ruling favoring Ohio would risk screening out meritorious discrimination cases. The burden on plaintiffs is already high, Robertson said, and the 6th Circuit in this case added an additional requirement that many plaintiffs cannot meet.
Conservative Justice Amy Coney Barrett asked Robertson to address Ohio’s concern that a ruling in favor of Ames would open a floodgate of workplace discrimination suits.
Robertson said the U.S. Equal Employment Opportunity Commission, the federal agency that enforces laws against job bias, dropped the heightened standard nearly two decades ago and that other mechanisms exist for the EEOC and courts to screen out frivolous cases.
“We share Ohio’s concerns with making sure that meritless cases don’t reach trial,” Robertson added. “We simply think that raising the standard at step one would be exactly the wrong way to address that concern.”
Liberal Justice Ketanji Brown Jackson suggested that the position being argued by Elliot Gaiser, the lawyer for the Ohio Department of Youth Services, would impose too heavy a burden on plaintiffs at the initial stage of their legal proceeding.
Gaiser said that Ohio “agrees it is wrong to hold some litigants to a higher standard because of their protected characteristics” but said that is not what happened in this case. Gaiser said Ames failed to establish that anybody was motivated by sexual orientation in making the employment decisions that affected her “or even knew her sexual orientation – nor the orientation” of the two gay employees.
Liberal Justice Elena Kagan said Gaiser seemed to agree with Ames on the case’s central issue.
“The question presented 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,” Kagan said. “Everybody over here says, ‘No.’ You say, ‘No,’ too.”
Kagan told Gaiser he was now asking the justices to weigh in on various other matters “that are really not intertwined at all with that question.”

Supreme Court Poised to Rule for Straight Woman in Discrimination Case

By Adam Liptak, NY TIMES, February 26, 2025

The justices seem ready to overturn a ruling that had required a higher burden of proof for a straight woman in a discrimination case that involved her twice losing positions to gay workers.

The Supreme Court heard arguments on Wednesday over an employment discrimination suit filed by a straight woman who twice lost positions to gay workers. The case comes two years after the Supreme Court struck down race-conscious admissions programs in higher education and amid the Trump administration’s fierce efforts to root out programs that promote diversity.

While some conservative groups have hoped the case will yield a major statement on efforts to diversify the workplace, it seemed likely to produce a modest decision saying merely that a key civil rights law applied equally to all employees.

Indeed, the argument was notable for what Justice Neil M. Gorsuch called the “radical agreement” among not only justices across the ideological spectrum but also, remarkably, all of the lawyers in the case. They all said that an appeals court had gone badly astray in imposing a heightened burden for members of majority groups seeking to prove workplace discrimination.

The court seemed likely to issue a brief and perhaps unanimous decision in favor of the woman, Marlean A. Ames. Justice Brett M. Kavanaugh said he envisioned “a really short opinion that says discrimination on the basis of sexual orientation, whether it’s because you’re gay or because you’re straight, is prohibited, and the rules are the same.”

Ms. Ames worked for the Ohio Department of Youth Services, which oversees parts of the state’s juvenile corrections system. After a decade there, in 2014 she became the administrator of a program addressing prison rape. Five years later, she applied for a promotion.

Her supervisors turned her down, saying she lacked vision and leadership skills, eventually giving the position to a gay woman who had been at the department for a shorter time and, unlike Ms. Ames, lacked a college degree.

Not long after denying her the new position, her supervisors removed her from her existing job, telling her that they had concerns about her leadership and offering her a demotion that came with a substantial pay cut. She was replaced by a gay man with less seniority.

Ms. Ames sued under a federal civil rights law that forbids employment discrimination based on, among other characteristics, sex. (The Supreme Court ruled in 2020 that discrimination based on sexual orientation is a form of sex discrimination for purposes of the civil rights law.)

The text of the law, Title VII of the Civil Rights Act of 1964, does not draw distinctions based on whether the person claiming discrimination is a member of a majority group. But some courts have required such plaintiffs to prove an additional element if they lack direct evidence of discrimination: “background circumstances that support the suspicion that the defendant is that unusual employer who discriminates against the majority.”

But the appeals court said Ms. Ames had provided neither kind of proof. (In the trial court, she said the two supervisors who took negative employment actions against her were straight. On appeal, she said a gay supervisor had also played a role. The appeals court ruled that she had forfeited that argument by not making it sooner.)

Conservative legal groups have championed Ms. Ames’s case. But the Biden administration too supported her argument, filing a brief supporting Ms. Ames.

At the argument on Wednesday, Ashley Robertson, a lawyer for the Trump administration, took the same position, rejecting the appeals court’s ruling. She said it amounted to this: “Tell me your race, and I will tell you how much evidence you need to produce.”

T. Elliot Gaiser, Ohio’s solicitor general, who represented the state agency that employed Ms. Ames, had the unenviable task of trying to win his case while disavowing the appeals court decision he was defending.

Mr. Gaiser said that “Ohio agrees it is wrong to hold some litigants to a higher standard because of their protected characteristics.”

Justice Elena Kagan was taken aback. She asked whether the appeals court was wrong.

Mr. Gaiser said yes. “The idea that you hold people to different standards because of their protected characteristics is wrong,” he said.

He said Ms. Ames could not meet the usual burdens on plaintiffs in employment discrimination cases. “She could not establish that anybody was motivated by sexual orientation or even knew her sexual orientation,” he said.

Several justices said those arguments should be addressed in the lower courts.

The only question the Supreme Court had agreed to decide, Justice Kagan said, “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.”

The parties in the case treated it as a technical matter largely unrelated to the broader debate over diversity programs that has long divided the public and has been amplified since the second Trump administration has made the elimination of diversity, equity and inclusion programs in government and the private sector one of its central projects.

But conservative legal groups filed supporting briefs taking aim at the notion that discrimination against white employees, straight people and men is in any way unusual.

“The rise of D.E.I. ideology and racial preferences means that discrimination is all too common today,” said a brief from the Pacific Legal Foundation, a libertarian group.

A brief from the NAACP Legal Defense and Educational Fund, on the other hand, said the justices should take account of Title VII’s history and purpose, which was focused on historically disadvantaged minorities. “The virtual absence of widespread discrimination targeting certain majority groups like white people and straight people,” the brief said, “is well documented, and it is a relevant and important consideration.”

Only Justice Samuel A. Alito Jr. touched on those issues, and only glancingly. “The rule that the Sixth Circuit applied was apparently based on an intuition about the way in which most employers behave,” he said, adding that the intuition may have made sense when a key precedent was issued in 1973 but may be “no longer sound today.”

Lawyers for local governments raised a different concern, saying that a ruling for Ms. Ames would produce “a looser standard that is all but certain to open the floodgates of litigation.”

Justice Amy Coney Barrett asked questions about what she called “a floodgate problem” but seemed satisfied by an answer from Xiao Wang, a lawyer for Ms. Ames.

More than half of the nation’s federal appeals courts do not require members of majority groups to meet a heightened burden, he said, adding that “we don’t see those circuits having some sort of flood of litigation.”

By Adam Liptak

WASHINGTON  The Supreme Court ruled on Monday that white firefighters in New Haven were subjected to race discrimination when the city threw out a promotional examination on which they had done well and black firefighters poorly.

“The city rejected the test results solely because the higher scoring candidates were white,” Justice Anthony M. Kennedy wrote for the majority, adding that the possibility of a lawsuit from minority firefighters was not a lawful justification for the city’s action.

“Fear of litigation alone,” Justice Kennedy wrote, “cannot justify an employer’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions.”

The 5-to-4 ruling, which reversed an appeals court decision joined by Judge Sonia Sotomayor, now a Supreme Court nominee, will have broad impact, lawyers specializing in employment discrimination law said.

“This decision will change the landscape of civil rights law,” said Sheila Foster, a law professor at Fordham.

The new standards announced by the court will make it much harder for employers to discard the results of hiring and promotion tests once they are administered, even if they have a disproportionately negative impact on members of a given racial group.

Public employers that use civil service examinations and similar tests will be most directly affected, but the principle announced by the court applies to all employers and all sorts of procedures used to rank and sort potential and current employees.

Justice Ruth Bader Ginsburg, reading a dissenting statement from the bench, said the majority had undermined a crucial civil rights law. “Congress endeavored to promote equal opportunity in fact, and not simply in form,” she said. “The damage today’s decision does to that objective is untold.”

The New Haven case had drawn wide interest, in part because of Judge Sotomayor’s role in it.

Supporters of her Supreme Court nomination said Monday’s decision changed the law and thus did not reflect negatively on the decision she participated in. Critics asserted that the appeals court’s approach had not been fully endorsed by any justice.

Justice Kennedy, writing for himself and the four members of the court’s conservative wing, said the case required the court to try to reconcile two aspects of Title VII of the Civil Rights Act of 1964, which prohibits race discrimination in employment.

The “original, foundational” core of Title VII, Justice Kennedy wrote, prohibits intentional discrimination against individuals on the basis of race — “disparate treatment,” in the legal jargon. But the law also prohibits some seemingly neutral practices that have a “disparate impact” on members of racial groups.

Many of the plaintiffs in the case — 18 white firefighters, one of them Hispanic — studied intensively for the test, giving up second jobs and missing family celebrations. The lead plaintiff, Frank Ricci, who is dyslexic, said he studied for 8 to 13 hours a day, hiring an acquaintance to tape-record the study materials.

New Haven argued that it had acted in good faith in throwing out the exam results, fearing a disparate-impact suit from minority firefighters.

That was not enough, Justice Kennedy wrote. Indeed, allowing “employers to discard the results of lawful and beneficial promotional exams even when there is little if any evidence of disparate-impact discrimination,” he wrote, “would amount to a de facto quota system.”

But the majority did not rule out consideration of disparate impact altogether. Employers may consider potential racial impact “during the test-design stage,” Justice Kennedy wrote.

And, in “certain, narrow circumstances” after tests are given, he continued, employers may discard the results if they can demonstrate “a strong basis in evidence” that using the results would cause them to lose a disparate-impact suit.

That heightened standard, Justice Kennedy wrote, requires employers to show that the tests were not relevant to the jobs at issue or that other “equally valid and less discriminatory tests were available.”

In the case before the court, Ricci v. DeStefano, No. 07-1428, the majority said there was no evidence, let alone strong evidence, of either a problem with the tests or of the availability of better alternatives. The court ruled in favor of the plaintiffs outright rather than returning the case to the lower courts for application of the new “strong basis in evidence” standard.

Because it ruled on statutory grounds, the court did not consider the plaintiffs’ separate claim that New Haven had violated the firefighters’ rights under the Constitution’s equal protection clause.

Justice Kennedy was joined by Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr.

In a concurrence, Justice Scalia predicted that the court would soon have to reach the larger constitutional question. “The war between disparate impact and equal protection will be waged sooner or later,” he wrote, “and it behooves us to begin thinking about how — and on what terms — to make peace between them.”

Justice Ginsburg, writing for herself and Justices John Paul Stevens, David H. Souter and Stephen G. Breyer, said the majority had underestimated the legitimate fear New Haven had of losing a disparate-impact suit. “Like the chess player who tries to win by sweeping the opponent’s pieces off the table,” she wrote of the majority opinion, “the court simply shuts from its sight the formidable obstacles New Haven would have faced.”

None of the justices were directly critical of the unsigned appeals court decision in which Judge Sotomayor participated. Justice Kennedy did write that the decision, issued “after full briefing and argument by the parties,” consisted of a single paragraph adopting the district court’s decision.

Justice Alito, in a concurrence for himself and Justices Scalia and Thomas, noted that the federal government had not fully endorsed the appeals court’s decision in the supporting brief it filed in the Supreme Court, suggesting instead that the case be returned to the lower courts for more work.

The four dissenters in places seemed to endorse the approach suggested by the federal government; in others, they indicated they would have ruled for New Haven outright.

Justice Ginsburg wrote that there was a long history of race discrimination in firefighting. She added that people good at taking tests were not necessarily the best leaders in public safety emergencies.

In her statement from the bench, Justice Ginsburg said the firefighters who sued “understandably attract the court’s empathy.” (In her written dissent, she said the plaintiffs “attract this court’s sympathy.”)

Justice Alito, in his concurrence, said that was not enough.

“ ‘Sympathy’ is not what petitioners have a right to demand,” Justice Alito wrote. “What they have a right to demand is evenhanded enforcement of the law — of Title VII’s prohibition against discrimination based on race. And that is what, until today’s decision, has been denied them.”

A correction was made on July 1, 2009:

An article on Tuesday about the Supreme Court’s ruling in an employment discrimination case brought by firefighters in New Haven referred incorrectly at one point to an opinion by Justice Samuel A. Alito Jr. As noted elsewhere in the article, it was a concurrence, not a dissent.

Betsy Combier

betsy@advocatz.com

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