Straight woman lost two jobs to gay colleagues. Supreme Court will decide if she can sue.

Posted by author February 23, 2025 Jobs

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Lower courts said Marlean Ames hadn’t backed up her claim that the Ohio Department of Youth Services is “that unusual employer who discriminates against the majority.”

WASHINGTON − Marlean Ames twice lost jobs at the Ohio Department of Youth Services to other candidates she thought were less qualified.

Both workers were gay and Ames, a heterosexual, tried to sue for discrimination.

“I was straight and pushed aside,” Ames told Reuters.

But a federal judge dismissed her suit because Ames hadn’t provided “background circumstances” showing the department was “that unusual employer who discriminates against the majority.”

The Supreme Court will debate Wednesday whether judges can use that threshold test for workplace discrimination allegations not involving members of a minority group.

The case could lead to an influx of “reverse discrimination” claims if the court nixes that test, according to employment law experts.

Ames’ attorneys argue her suit would have been allowed to go forward if she had been gay and the employees who got the jobs she wanted were not.

“But because Ames falls on the majority-group side of the majority/minority fault line, she has no legal recourse,” they said in a filing.

`Shock wave in the employment system’

Siding with Ames would be consistent with recent decisions in which the conservative court has focused not on historical patterns of prejudice but has said discrimination is discrimination, regardless of a person’s race.

And the case is being decided as the nation is turning away from diversity, equity and inclusion initiatives, a backlash turbo charged by President Donald Trump. He’s administration has promised to “investigate, eliminate and penalize illegal DEI” programs.

“I think it’s going to send another shock wave in the employment system with regard to what is discrimination, who can bring claims, and how does that relate to DEI,” Jonathan Segal, a labor law expert at Dwayne Morris, said of the Supreme Court case.

But not all aspects of the case fall along predictable ideological lines.

Before Trump took control of the executive branch, the Justice Department under President Joe Biden told the Supreme Court that the provision of the Civil Rights Act of 1964 that prohibits workplace discrimination does not set a higher bar for claims brought by members of a majority group.

And the lower court’s ruling against Ames is being defended by the attorney general of Ohio, a Republican representing a conservative state.

Ohio Attorney General Dave Yost said Ames’ allegations weren’t held to a higher standard. She merely failed to provide enough initial evidence of discrimination to allow her suit to proceed.

“The language Ames complains about is just another way of articulating what this Court has recognized: that courts do not consider evidence in a vacuum,” Yost wrote in a filing.

And Ames, he said, “has not identified a single piece of evidence that suggests that sexual orientation played any role in the hiring decision at issue in her promotion claim.”

Passed over for promotion and demoted

Ames has worked since 2004 at the state’s youth services department, which oversees aspects of the juvenile corrections and rehabilitation system. First hired as an executive secretary, Ames held various positions before seeking an additional promotion in 2019. That job went instead to a gay woman who had held management roles, like Ames, but did not have a college degree and had not originally applied for the job.

Soon after being told she wasn’t getting promoted, Ames was also demoted from her position as a program administrator. That job was given to a gay man, whom the department hired as a social worker a few years earlier.

Department officials said Ames was passed over for the promotion because she lacked the necessary vision and leadership skills. Officials said she was demoted from her administrator position because she wouldn’t bring a proactive approach to the department’s increased emphasis on combatting sexual violence in the juvenile corrections system.

The Cincinnati-based 6^th U.S. Circuit Court of Appeals upheld the district judge’s dismissal of Ames’ suit.

The court said she failed to show the required “background circumstances,” such as statistical evidence indicating a pattern of discrimination against heterosexuals, or that the decisions against her were made by a gay person.

Hurdles for suing set by 1973 Supreme Court case

The judges were following a standard set in previous reverse discrimination cases by courts trying to apply the Supreme Court’s 1973 decision about the requirements a Black mechanic and civil rights activist had to meet when suing his employer for discrimination under Title VII of the Civil Rights Act.

In McDonnell Douglas Corporation v. Green, the court said that in cases involving circumstantial evidence, the worker has the initial burden of showing those circumstances suggest discrimination. If the employer can offer an alternative explanation, the burden shifts back to the worker to prove that explanation is a cover story.

Where later courts went wrong, Biden’s Justice Department told the Supreme Court, is assuming the Supreme Court’s decision was based on the fact that the worker was Black.

But nothing in that decision turned on race, the Justice Department said in a filing, and the law itself prevents discrimination based on “race, color, religion, sex, or national origin” without giving greater protection to members of minority groups.

The Equal Employment Opportunity Commission, which enforces workplace anti-discrimination rules, applies the same standard of proof to all claims, the government also noted.

Still, in 1981, an appeals court said that while white people are covered by the Civil Rights Act, it defied common sense “to suggest that the promotion of a black employee justifies an inference of prejudice against white co-workers in our present society.” The U.S. Court of Appeals for the D.C. Circuit said members of a majority group can meet the initial burden in a discrimination claim “when background circumstances support the suspicion that the defendant is that unusual employer who discriminates against the majority.”

Other federal courts, but not most, have since adopted that test.

`Persistent legacy of discrimination’

In a brief siding with Ohio, the NAACP Legal Defense & Educational Fund and other civil rights groups said Ames wants courts to ignore the fact that “members of marginalized groups are far more likely to endure employment discrimination than their majority-group counterparts.”

“Majority-group plaintiffs are, of course, protected by Title VII,” they told the court. “They simply cannot rely on this country’s persisting legacy of discrimination targeting minority-group plaintiffs as a relevant factor in support of their claims because they do not share that legacy.”

Groups representing cities and counties also urged the Supreme Court to move carefully.

Weakening the first hurdle to bringing a discrimination case, they warned, would “open the floodgates of litigation.”

Segal, the employment law lawyer, said the case will have an impact even in the parts of the country where courts are not using the “background circumstances” rule.

The attention the case will get will “alert people to their rights,” he said, and make employers take note.

“Every year, there’s at least one employment case that’s the groundbreaking case that employers and employees alike are looking at,” he said. “And this year it’s the Ames case.”