The Supreme Court is poised to make it easier for nonminority plaintiffs to file workplace discrimination claims against their employers. In oral arguments on Wednesday in Ames v. Ohio Department of Youth Services, a clear majority of the justices appeared ready to rewrite a judicial test that made white, straight, and/or male plaintiffs meet a higher evidentiary threshold in Title VII cases than other litigants.
“So all you want for this case is 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 whichever way that goes?” Justice Brett Kavanaugh asked Xiao Wang, who represented an Ohio civil servant who claimed she faced discrimination because she is straight.
Oral arguments can be unpredictable on final outcomes, but a justice asking a lawyer how to write the opinion is generally seen as a good sign for that side’s chances. “That’s right, Your Honor,” Wang replied. “I think you’d also have to say ‘reverse’ or ‘vacate,’” she added, to chuckles from the courtroom. “I want to look out for my client here a little bit.” The question will instead likely be how the court decides in Ames’s favor, and whether it will make Title VII cases harder to pursue in general.
The plaintiff, Marlean Ames, joined the Ohio Department of Youth Services in 2004. After starting as an executive secretary, she was promoted multiple times and received positive job performance reviews along the way as a project administrator. In 2019, Ames applied for a bureau chief position in the agency.
Two supervisors interviewed Ames for the position but did not hire her for it. Two other applicants who were interviewed for the job did not get hired either. Eight months later, according to Ames, a supervisor hired someone she personally knew for the job who had neither applied nor interviewed for it.
Ames was then removed from her then-current job as a program administrator and given the choice between demotion back to executive secretary or dismissal. She chose demotion. Ames attributed her sudden career downturn to her sexual orientation. She is straight, the hiring supervisor and the person hired for the bureau chief job are both lesbians, and the person who replaced her as program administrator is gay.
“In her place, the Department hired a gay man who, much like the gay woman hired for the Bureau Chief position, was ‘neither qualified’ nor had ‘formally applied’ for the role,” Ames’s lawyers claimed in their brief for the court. “Moreover, this man had told many coworkers that he ‘wanted Ms. Ames’s job,’ including his first supervisor, his second supervisor, Ames herself, and Ames’s supervisor.” Ames claimed that to avoid violating the department’s promotion guidelines, the employee quit his then-current job and was hired for Ames’s old job the next day.
Ames filed a lawsuit against the department under Title VII of the Civil Rights Act of 1964, which generally makes it illegal for American employers to discriminate against workers or job applicants on the basis of their “race, color, religion, sex, or national origin.” In the 2022 case Bostock v. Clayton County, the Supreme Court held that “sex” covered sexual orientation and gender identity, thereby extending Title VII to gay and transgender workers.
Both the District Court and the Sixth Circuit Court of Appeals rejected her claims. The prevailing legal test for Title VII claims comes from the 1973 case McDonnell Douglas v. Green. In its broadest terms, a plaintiff first alleges a prima facie claim of discrimination—that is to say, a woman says that a company hired or promoted less qualified men instead of her. Employers can counter that argument with evidence that they had a nondiscriminatory reason for their decision. A plaintiff must then show that the neutral reason is merely pretextual.
In Ames’s case, the appeals court held that Ames’s claim failed at the first step. A plaintiff can claim prima facie discrimination either with direct evidence—an employer telling an applicant that he didn’t hire her because she’s a woman, for example—or circumstantial evidence. Members of minority groups that have historically experienced discrimination can cite those “background circumstances” as circumstantial evidence. Members of a majority group—white, straight, male, and so on—cannot.
“Put differently, if Ames were gay and the employees hired in preference of her were not, she would have established the elements necessary for her prima-facie case,” her lawyers argued in their brief for the court. “But because Ames falls on the majority-group side of the majority/minority fault line, she has no legal recourse.”
The state of Ohio does not really contest this argument. That is not particularly surprising. Ohio Attorney General Dave Yost is an outspoken opponent of diversity, equity, and inclusion policies. He drew national attention last month for threatening Costco after the company declined to join other major corporations in ending its DEI policies after President Donald Trump’s second inauguration.
It would be a stretch to call Ohio’s briefing in this case non-adversarial. But Yost’s office made little effort to defend the status quo beyond blandly describing the court’s precedents and stating that the Sixth Circuit had correctly applied them. Justice Elena Kagan chided Elliot Gaisler, the solicitor general of Ohio, for raising extraneous points beyond the core issue that was before the justices.
“You say you agree with your friends on the question that we took this case to decide,” Kagan said. “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. Everybody over here says no. You say no too. That was the question that we took the case to decide.”
Arguing in favor of the background-circumstances test—though not at oral arguments, since it was not a party in the case—was the NAACP Legal Defense Fund, which filed a friend-of-the-court brief. It urged the court to keep the background-circumstances test intact and claimed that Ames “asks this Court to interpret Title VII in a way that ignores the realities of this country’s persisting legacy of discrimination in evaluating disparate treatment claims.”
“Majority-group plaintiffs are, of course, protected by Title VII,” the group explained. “They simply cannot rely on this country’s persisting legacy of discrimination targeting minority-group plaintiffs as a relevant factor in support of their claims because they do not share that legacy. Properly understood, this is all that the ‘background circumstances’ inquiry (or whatever label a court chooses to give it) should mean.”
The organization also disputed suggestions that majority-group plaintiffs prevailed less often in Title VII cases. “The reality is that employment discrimination cases are generally very difficult to win, for everyone,” it explained. “But studies of outcomes of Title VII lawsuits reveal that majority-group plaintiffs are often more likely to prevail. According to a study of intersectional Title VII claims where plaintiffs alleged that they experienced discrimination because of two or more protected categories, white men were three times more likely to win on their claims than non-white women.”
Those arguments are unlikely to persuade the court’s conservative supermajority, however. Under Chief Justice John Roberts, the Supreme Court has sought to eradicate any hint of what it describes as “racial preferences” in American law. His majority opinion in Students for Fair Admissions v. Harvard University, the court’s landmark 2023 ruling against affirmative action in college admissions, denounced what he described as a “judiciary that picks winners and losers based on the color of their skin.”
While the court appears almost certain to side with Ames, the larger question will be how the justices actually write the decision. Their answer could have far-reaching implications. One concern is that the court’s ruling could further limit the type of circumstantial evidence that plaintiffs could bring in any Title VII case, whether brought by a member of a minority or majority group. That would risk stalling legitimate claims before they could be pursued at the very first step of the McDonnell Douglas test.
To that end, the Ohio attorney general’s office warned against making it easier to bring Title VII claims in general. “Maintaining a robust threshold step … ensures that many specious or vexatious Title VII lawsuits die on the desk of busy plaintiffs’ lawyers,” it argued, paraphrasing from an unrelated lower court opinion, “and that ‘American workplaces’ remain ‘lively engines of innovation and competition,’ not ‘sclerotic bureaucracies whose prime directive is to avoid litigation rather than to achieve excellence.’”
At one point, Justice Amy Coney Barrett invited Wang to argue against the proposition that a ruling in Ames’s favor was “just going to throw the door wide open to Title VII suits because now everybody can say, hey, this was discrimination on the basis of race, gender, et cetera?” Wang noted that such a flood was unlikely because less substantive cases are likely already filtered out by the time the courts reach the summary judgment stage, as Ames did. That will likely comfort any members of the court who want to erase perceived discrimination from the law but don’t want to make it easier for workers to challenge it in the workplace.
