Challenges Made to Supreme Court Decision on Reverse Discrimination Case

Marlean Ames outside of her attorney’s office in Akron, Ohio, on Feb. 20. (Maddie McGarvey/For The Washington Post). Courtesy of the Washington Post.

Since the Supreme Court passed down its Students for Fair Admissions v. Harvard ruling in 2023 that effectively struck down affirmative action, courts nationwide have seen an increase in the number of reverse discrimination cases. One such case relating to workplace discrimination has made its way to the Court, where the justices must decide if a higher standard should be applied to majority group members. 

Marlean Ames worked with the Ohio Department of Youth Services for 30 years. She applied for a promotion to Bureau Chief and was interviewed by her supervisor, a gay woman. 

However, both Ames and another heterosexual candidate were denied the promotion. The position was instead filled 8 months later by a gay candidate who neither applied nor interviewed. Ames was subsequently reassigned from her original position and replaced by another gay employee who, again, did not apply or interview for the position. 

After these two adverse employment actions, Ames sued her employer under Title VII of the Civil Rights Act of 1964, claiming the only reason she did not get the promotion and lost her original position was because of her sexual orientation. 

Title VII aims to reduce workplace discrimination by providing minority group members a means of seeking legal recourse for adverse employment actions. Traditionally, when a complainant files a Title VII claim, they carry the first burden of proof to show a prima facie case of discrimination. This means the complainant must show they belong to a protected class, they were a good fit for the job and someone else got it instead based on their majority group status. 

For minority group members, evidence of their individual experience of discrimination can be sufficient to pass this burden of proof. After the complainant successfully shows a prima facie case, the burden shifts onto the employer to show they had legitimate, non-discriminatory reasons for making their hiring or firing decisions.  

However, for reverse discrimination cases, some courts require majority group members to pass a heightened burden of proof called the background circumstances rule. The rule requires majority group members to show further evidence that their employers have a pattern of discriminating against majority groups. Thus, they cannot rely solely on their own experience of discrimination as a minority group member could. 

The Southern District Court of Ohio decided Ames, as a member of the majority group, did not pass the heightened burden of proof for a prima facie case. Upon appeal, the 6th Circuit Court upheld the lower court’s decision and its reasoning. 

However, Ames now challenges the background circumstances rule as inconsistent with the aim of Title VII. Given the inconsistent application of the rule across courts nationwide, the Supreme Court granted Ames’ petition certiorari. Oral arguments were heard on Feb. 26.  

During the hour-long hearing, Ames’s attorney, Xiao Wang, argued the rule in question is inconsistent with the idea of equal treatment of all, on which the Civil Rights Act and Title VII were founded. Wang concluded the Court ought to strike down the background circumstances rule and reinforce the idea that Title VII protects all workers. 

In contrast, Ohio Solicitor General Elliot Gaiser argued that, even without the heightened burden of proof, Ames could not show sufficient evidence that her employer was aware of, let alone motivated by, her sexual orientation when making hiring decisions. As such, he asked the court to affirm the 6th Circuit Court’s ruling because its decision was correct, even if its application of the background circumstances rule was not. 

Notably, the Supreme Court is only being asked if the background circumstances rule is in line with the statute, not whether Ames has sufficient standing for a case or was discriminated against. Thus, the justices might narrowly answer the question at hand and pass the case back down to lower courts to apply the new ruling.

If the Court sides with Ames and strikes down the background circumstances rule, it would become easier for majority group members to file discrimination suits under Title VII. Some experts worry such a ruling could make it harder to identify and resolve meritless reverse discrimination claims early in the litigation process, thus putting an extra strain on courts. Conversely, upholding the background circumstances rule would result in the widespread application of the rule in lower courts as the different treatment of discrimination claims against minority versus majority group members is legitimized.