Will SCOTUS canonize reverse discrimination?

The Background 

Marlean Ames (petitioner), a straight, white woman, began working for the Ohio Department of Youth Services (ODYS) in 2004. The petitioner’s petition for writ of certiorari mentions positive performance reviews and, in 2014, she was promoted to Program Administrator for the Prison Rape Elimination Act (PREA). In 2017, Ames began reporting to Ginine Trim, a gay woman, while continuing to receive good reviews.  

In 2019, Ames applied for and was denied the role of “Bureau Chief of Quality Assurance.” The position was eventually offered to a Yolanda Frierson, a gay woman who the petitioner argues was comparatively underqualified.  

Ames was also removed from her existing position at ODYS and was offered the choice to return to her previous position or face termination. Her role as PREA Administrator was filled by Alexander Stojsavljevic, a gay man. Her petition claims that an administrative “work-around” was necessary to prevent ODYS from violating its own hiring procedures. 

In 2020, Ames filed a claim against ODYS in federal court, alleging violations of Title VII, the Fourteenth Amendment, Age Discrimination in Employment Act, and state law. She challenged ODYS’ decision to promote Frierson on illegal sexual orientation grounds. The decision to replace her role as PREA Administrator with Stojsavljevic was challenged on sex and sexual orientation grounds.  

In 2022, most of Ames’ claims were dismissed by the district court; the claim that brought the case to SCOTUS was her Title VII claim for sexual orientation discrimination.  

A Title VII plaintiff can expect to encounter the McDonnell Douglas burden-shifting framework for analyzing discrimination claims. First, a plaintiff must establish a prima facie case showing that (1) she belongs to a protected class, (2) she was a qualified applicant for a position the employer sought to fill, (3) she was rejected despite her qualifications, and (4) after being rejected, the position remained open and the employer continued to seek applicants.  

If a plaintiff can successfully establish a prima facie case, the burden shifts to the employer to articular a legitimate, nondiscriminatory purpose for the rejection. The burden then returns to the plaintiff to show that the employer’s stated reason was, in colloquial terms, baloney.  

In addition to the steps above, the Sixth Circuit Court of Appeals outlined Ames’ additional requirements as a majority-group plaintiff (here, heterosexual) claiming discrimination.   

As a member of a majority group, Ames’ claim required her to show background circumstances to support a suspicion that ODYS was an “unusual” employer engaged in discrimination against a majority group. Plaintiffs often make this showing of background circumstances with evidence that the applicable minority group made the employment decision, or with evidence showing a pattern of discrimination by the minority group against the majority group.  

Holding that Ames could not make such a showing, the Sixth Circuit rejected her claim.  

The Issue 

The question before the court is whether, in addition to other pleading elements of Title VII, a majority-group plaintiff must show background circumstances to support a suspicion of discrimination against a majority. Put differently, this issue is whether this additional burden for majority-group plaintiffs is overly burdensome.  

The Arguments 

The petitioner argues that requiring only majority-group plaintiffs to show background circumstances is contrary to Title VII. The argument is: (1) Title VII prevents discrimination based on sex and sexual orientation; (2a) female is a sex and (2b) heterosexual is a sexual orientation; therefore (3) Title VII prohibits discrimination against Ames, a straight female.  

Majority or minority group membership will not be too important to this argument. Title VII precludes one’s membership in any group from being the basis of discrimination. A proponent of Ames’ claim would argue that one’s membership in majority group based on inherited characteristics should not preclude the possibility of being discriminated against.  

An opponent might argue that discrimination implies disparate treatment favoring a majority group against a minority group. To discriminate is to divide, and that division occurs vertically, where the rights of a majority group are located above and to the detriment of a minority group’s rights. Recognition of such vertical separation prompted the Civil Rights Act in the first place.  

ODYS’ brief in opposition centralizes the weakness of Ames claims under McDonnell Douglas, arguing that Ames’ claim would have failed at the prima facie stage even if the Sixth Circuit had not used the “background circumstances” framework Ames challenges. In fact, it argues, Ames never challenged the background circumstances requirement in the lower courts; she argued that she satisfied it, an argument the Sixth Circuit rejected. 

ODYS also argues that Ames could not make a prima facie showing because she could not prove that ODYS had knowledge of the trait that formed the basis of the discrimination. An employer can’t make a hiring decision based on a trait of which they are unaware. 

Per SOCUTSblog, an opinion is expected by this summer.