Last week, the U.S. Supreme Court heard oral arguments in Ames v. Ohio Department of Youth Services, an employment discrimination lawsuit that focused on a reverse discrimination claim under Title VII of the Civil Rights Act of 1964. Although the Supreme Court’s decision in Ames is not expected for a few months, the questions posed during oral arguments provide potential insight into how the justices may rule.
Reverse sexual orientation discrimination claim
Marlean Ames, a heterosexual female, began working for the Ohio Department of Youth Services (DYS) in approximately 2004 and became a program administrator in 2014. In 2019, she applied for a new position that she did not receive. Soon after, DYS demoted Ames, resulting in a substantial reduction in her compensation. The agency subsequently promoted a homosexual man to Ames’s previous administrator position, and later that year, DYS hired a homosexual woman for the position Ames applied for but did not receive.
Ames filed a lawsuit in federal court in Ohio alleging that her employer had discriminated against her based upon her sexual orientation. The trial court found in favor of the DYS and dismissed Ames’ case. Next, Ames appealed to the U.S. Court of Appeals for the Sixth Circuit, the federal appellate court overseeing the federal district court in Ohio. The Sixth Circuit agreed with the federal district court, holding that Ames lacked evidence of the “background circumstances” necessary to prove her reverse discrimination claim based upon her sexual orientation. More specifically, Ames could not show that a homosexual individual made the employment decisions at issue, or that statistical evidence showed a pattern of discrimination by the agency against heterosexual employees. After the federal appeals court also ruled against Ames, she appealed to the U.S. Supreme Court.
Notes from oral arguments
During the hearing on Ames’ appeal, the Supreme Court focused on the following issue during the oral arguments in Ames: To establish a Title VII discrimination claim, does a majority-group plaintiff (such as Ames, a heterosexual female) need to show “background circumstances” suggesting that the defendant employer discriminates against the majority (rather than the minority), even though a minority-group plaintiff does not have to satisfy the same requirement?
The Supreme Court justices’ questions during oral argument signaled that they may be sympathetic to Ames’ position and ready to overturn the “background circumstances” requirement imposed by some federal courts. Justice Barrett, for example, questioned the Ohio Solicitor General (who argued on behalf of the Ohio Department of Youth Services) about whether majority- and minority-group plaintiffs should be subject to the same requirements of proof when bringing claims under federal discrimination laws. Justice Kavanaugh and Justice Kagan echoed those questions, and the Ohio Solicitor General ultimately conceded that “the idea … [of] hold[ing] people to different standards because of their protected characteristics is wrong” – a concession that addressed the key issue before the court.
Consistency with President Trump’s executive orders
The Supreme Court’s review of Ames and the “background circumstances” requirement for reverse discrimination claims comes on the heels of the Trump Administration’s sweeping changes with respect to DEI, federal gender identity and sexual orientation employment law protections for employees, and more. As addressed in previous articles, President Trump issued multiple executive orders during his first week in office, one of which redefined “sex” and another which targeted DEI programs in both the public and private sectors. The forthcoming decision in Ames could mark another change in federal employment discrimination law — a change that would align with the Trump Administration’s previous declarations on these related issues.
Next steps
Although the Supreme Court is not expected to provide its ruling in Ames until late spring or early summer, employers should begin preparing for a potential legal change in the “background circumstances” requirement for reverse discrimination claims applied by some courts. As always, employers should ensure that any adverse employment action taken against an employee is made for legitimate, nondiscriminatory, and nonretaliatory reasons. This practice helps ensure that employers are not making decisions based upon protected characteristics, whether such characteristic falls into a “majority” or “minority” classification.
