High Court Weighs Workplace Bias Claim of White, Straight Woman

The US Supreme Court is expected to build on its recent landmark workplace discrimination precedent as it weighs claims by an Ohio woman that she was passed over for promotions and demoted because she is White and straight.

The high court on Wednesday hears arguments in Ames v. Ohio Department of Youth Services, a case brought by Marlean Ames, who sued the state’s youth corrections system after it failed to promote her in 2019.

The case, at its base, concerns whether members of a majority group such as White employees must face a higher evidentiary burden when proving a workplace discrimination claim. A ruling, expected by June, follows a circuit divide on the issue.

Legal observers predict the conservative majority will concur and rule that federal anti-discrimination protections must be applied equally to all workers regardless of race, gender, and other protected characteristics.

That would align with the majority’s 2023 ruling outlawing race-conscious college admissions practices, which it said undermine the US Constitution’s guarantee of equal protection.

Such an order would also follow recent landmark high court decisions making it easier for LGBTQ+ and religious workers to get workplace bias claims under Title VII of the 1964 Civil Rights Act before a jury. It also would lower the threshold for what constitutes an illegal adverse employment action, law scholars said.

“It’s part of a pattern of what the Supreme Court is doing” by “making it easier for nontraditional cases” to proceed, said Samuel J. Cordes, an employment discrimination and constitutional law attorney at Quatrini Law Group.

Ames’ case highlights the “background circumstances” test, a judge-made doctrine that requires non-minority workers claiming discrimination to provide additional evidence that the defendant routinely discriminated against the majority group.

Ames alleged, among other things, that in addition to her race, her sexual orientation factored into her demotion. She lost two jobs to gay candidates she asserted were less qualified and noted her supervisor was also gay.

The US Court of Appeals for the Sixth Circuit held that she satisfied the usual first-blush requirements of the claim, but failed to overcome the background circumstances standard.

The Tenth, Eighth, Seventh, Sixth, and District of Columbia circuits have adopted this test. The Eleventh and Third circuits have rejected it.

Critics argue that the test imposes an unfair burden on plaintiffs based on their race, while supporters say it was developed in response to significant discrimination and societal power dynamics.

Worker-Friendly Shift?

Invalidating this requirement, which Title VII doesn’t mandate, would make it easier for White plaintiffs to pursue bias lawsuits. There’s been a spate of challenges to workplace diversity, equity, and inclusion initiatives following the affirmative action ruling on the basis that they give preferential treatment to racial minorities and women.

In 2020’s Bostock v. Clayton County, the court ruled 6-3 that sexual orientation and gender identity are protected under Title VII, a significant ruling for LGBTQ+ workers.

Three years later, the justices’ unanimous order in Groff v. DeJoy made it easier for religious workers to challenge policies that conflict with their beliefs.

And last year’s unanimous Muldrow v. City of St. Louis order held that workers no longer need to show they’ve suffered a materially significant injury or some other elevated harm standard. They need only demonstrate “some harm” that left them “worse off” at work, it said.

These rulings have reshaped the landscape for workplace anti-bias litigation but can’t be seen as reflecting a sea change towards a pro-employee stance by the high court, attorneys say.

“I don’t think we can extrapolate from that this general pattern that the court is just getting Title VII-friendly,” said Julian Wolfson of Littler Mendelson PC. “You don’t have a large sample of cases here.”

Eliminating the background circumstances test would simplify Title VII analysis across claims and align it more closely with a long-established Supreme Court standard used to evaluate liability in employment discrimination cases, law scholars said.

The court’s 1973 McDonnell Douglas Corp. v. Green decision established a three-step alternative method for plaintiffs to prove bias when direct evidence—like explicit discriminatory statements connected to race, gender, and other protected characteristics—isn’t available.

It specifically alternates the parties’ burden of proof—requiring a worker to first establish a foundation for the claim, allowing the company to introduce non-discriminatory evidence that would counter the allegation, and letting the claimant respond to refute the defense.

But there’s ongoing debate surrounding the standard’s usefulness, fueled in part by federal appeals court rulings that criticize district judges for overly rigid or incorrect application.

The question in Ames is narrow, but the case could be a vehicle for the justices to offer additional guidance on how lower courts should apply McDonnell Douglas, said Sandra Sperino, a discrimination law scholar at the University of Missouri.

Sperino and a group of employment law professors filed a joint amicus brief in the Ames case, asking the high court to invalidate the background circumstances test. The brief takes no position on the underlying dispute.

The justices have previously made the point “on multiple occasions that McDonnell Douglas is not meant to be this technical rigid test,” Sperino said. A worker may still prove bias with circumstantial evidence as an alternative.

Some appellate and district court judges have created their own standard or added additional requirements to McDonnell Douglas that haven’t “necessarily been guided by the text of the statute,” she said.

The case is Ames v. Ohio Dep’t of Youth Services, U.S., No. 23-01039, oral arguments scheduled 2/26/25.