The U.S. Supreme Court recently heard oral arguments in a case where an employee alleged she was discriminated against for being heterosexual.
Marlean Ames, an employee of the Ohio Department of Youth Services, argues she was passed over for a promotion and later demoted so her manager could instead offer both positions to less qualified gay applicants. Ames sued the department under Title VII of the Civil Rights Act, claiming its actions constituted discrimination based on sexual orientation.
The district court threw out the case, stating that Ames did not show background circumstances in her initial filings to show the department displayed a pattern of discrimination against other heterosexuals, which some appellate courts have deemed necessary when alleging discrimination by minority group members towards majority group members.
Title VII prohibits employment discrimination on the basis of sex. Supreme Court precedent in Bostock v. Clayton County interpreted sex-based workplace discrimination to include adverse employment actions, such as termination, demotion and failure to promote, based on sexual orientation. To win a Title VII discrimination case, the plaintiff must show “(1) that she was a member of a protected class; (2) that she was subject to an adverse employment decision; (3) that she was qualified for the relevant position; (4) and that her employer treated more favorably a similarly qualified person who was not a member of the same protected class.” (Jackson v. VHS Detroit Receiving Hosp., Inc., 814 F.3d 769; 6th Circuit 2016.)
Other precedent also requires a plaintiff who is in a majority group, heterosexuals, that is alleging employment discrimination by a relevant minority group, in this case homosexuals, to show background circumstances to support the suspicion that the defendant is the unusual type of employer who discriminates against the majority.
The Ames lawsuit did not include allegations that the department engaged in a pattern of discrimination against heterosexual employees and showed only two adverse employment actions that she alleged were related to her heterosexuality. At the Supreme Court level, Ames argued the need to show background circumstances is inconsistent with the text of Title VII, which forbids treating some people less favorably than others based on immutable characteristics. She claims the background circumstances test unfairly holds majority group plaintiffs to a higher standard than others. The federal government, as amicus curiae, agreed with Ames’ argument.
The department argued the background circumstances test is not a higher standard but rather a necessary requirement to screen out cases without merit. The department also argued that regardless of the test applied by the 6th U.S. Circuit Court of Appeals, Ames would have lost her case because she could not show evidence that the employer was motivated by her heterosexuality to demote and refuse to promote Ames.
The justices appeared receptive to Ames’ arguments and seemed to discount those of the department, instead focusing on whether the background circumstances test does impose an extra burden on certain plaintiffs.
The outcome of this case will affect so-called “reverse discrimination” cases across the country, especially while the Trump administration is acting to dismantle diversity, equity and inclusion initiatives within the federal government and discourage their use in the private sector.
The court will release its opinion later this term.
Nicole Ezeh is an associate legislative director in NCSL’s State-Federal Relations Division.