Supreme Court Signals Backing for Straight Woman’s Bias Suit (1)

The US Supreme Court signaled it will revive a job-bias lawsuit by a straight woman and make it easier in some parts of the country for members of so-called “majority groups” to get to a jury with discrimination claims.

Hearing arguments Wednesday, justices from across the ideological spectrum cast doubt on lower court rulings that require majority workers — including White people and men — to meet a more difficult legal test than members of groups that have historically faced discrimination.

The low-key session lasted less than an hour and featured what Justice Neil Gorsuch quipped was “radical agreement” that the same legal test should apply to all discrimination claims, no matter the characteristics of the person pressing the suit.

The justices are considering the case amid a broad legal and political attack on diversity, equity and inclusion programs. President Donald Trump has made rolling those programs back a top priority in his first month back in the White House. The dispute comes two years after the court outlawed consideration of race in university admissions.

The latest case involves Marlean Ames, who says she was denied a promotion and then demoted from her position at the Ohio Department of Youth Services because she is heterosexual. She says her employer put less qualified gay people in the jobs instead. She sued under the main federal job-discrimination law, known as Title VII.

In throwing out her suit, the Cincinnati-based 6th US Circuit Court of Appeals said that Ames needed to show “background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.” Several other appeals courts impose similar requirements before a case can get to a jury.

‘Peculiar Situation’

Even the lawyer representing the department, Ohio Solicitor General Elliot Gaiser, didn’t defend the extra requirement, though he said Ames’ lawsuit should be thrown out for other reasons.

“Everyone here agrees that everyone should be treated equally,” Gaiser said.

His concession left Justice Elena Kagan struggling to understand exactly what his position was.

“It’s a little bit of a peculiar situation, isn’t it?” she said. “I don’t know exactly what to make of this. Do you think that that’s right, or do think that it’s wrong?”

Ames has worked at the department, which oversees juvenile corrections, since 2004. She was promoted to administrator of the department’s Prison Rape Act Elimination Act program in 2014 and applied for a position known as bureau chief in 2019. She not only didn’t get the bureau chief position but was demoted around the same time, with her pay dropping from $47.22 per hour to $28.40.

Justice Sonia Sotomayor said Ames’s allegations were enough to “give rise to an inference of discrimination” and require the employer to provide an explanation.

Ames’ lawyer, Xiao Wang, said the case presented only a “narrow question” and wouldn’t open the way for a deluge of new lawsuits. He said more than half the federal appeals courts already don’t apply the background-circumstances rule.

“We don’t see those circuits having some sort of flood of litigation,” Wang said.

Ohio officials say that Ames was demoted as part of a broader restructuring and that the new department director found her difficult to work with. Gaiser on Wednesday added that Ames hadn’t shown that department officials were even aware of her sexual orientation.

The Trump administration is backing Ames in the case, as did the Biden administration before the Jan. 20 inauguration.

Ames’s supporters in the case include the America First Legal Foundation, which was co-founded by Stephen Miller, now Trump’s deputy chief of staff. The group said the background-circumstances rule “is highly suspect in this age of hiring based on ‘diversity, equity, and inclusion.’”

The case is Ames v. Ohio Department of Youth Services, 23-1039.

(Updates with excerpts from argument starting in seventh paragraph.)

To contact the reporter on this story:
Greg Stohr in Washington at gstohr@bloomberg.net

To contact the editors responsible for this story:
Elizabeth Wasserman at ewasserman2@bloomberg.net

Steve Stroth

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