Supreme Court case could end unequal standards in workplace discrimination lawsuits
Workplace discrimination doesn’t, well … discriminate; it can happen to anyone regardless of race, gender, or religion. Yet, while it can, and certainly does, happen to anyone, the burden of proof an employee must provide to the courts is not the same for every person. Under the “background circumstances” rule, “majority-group” employees, like white or male workers, are required to provide more evidence than others, completely disregarding the Constitution’s Equal Protection Clause.
But this rule might soon be changing, depending on the outcome of a current Supreme Court case.
This week, the Supreme Court heard arguments in Ames v. Ohio Department of Youth Services, a case addressing the background circumstances rule and whether it violates the government’s promise of equality before the law by making it harder for some workers to prove discrimination based solely on their demographic group.
Marlean Ames has worked for the Ohio Department of Youth Services since 2004. In 2019, after serving five years as an administrator over one of the department’s programs, she applied for a promotion. Even though she was qualified and experienced, she was denied the promotion on the grounds that she had neither the vision nor the leadership skills to fulfill the department’s expectations for the role.
Instead, the role ultimately went to a gay female coworker, who had significantly less experience in the department than Marlean. And unlike Marlean, she lacked a college degree. To make matters worse, Marlean was then demoted—with a pay cut—after her supervisors called her leadership skills into question. She was then promptly replaced by a gay man who had fewer years of leadership experience.
When she sued for discrimination under the federal civil rights law, the lower courts ruled against her, saying that she had not satisfied the background circumstances rule requirements. Now that her case has reached the Supreme Court, the justices have the opportunity to uphold the Equal Protection Clause and fundamentally change how workplace discrimination cases are handled in our legal system.
Pacific Legal Foundation takes equality issues seriously and filed an amicus brief in support of the petitioner’s argument that discrimination should not be held to different standards of review. One of our primary missions at PLF is to ensure the government is living up to its obligation to treat and judge every person on their individual merit and not according to an immutable characteristic. The background circumstances rule does the exact opposite and flies in the face of the Constitution. The Supreme Court can help right this wrong and support PLF’s mission by making the right decision in Ames.
In PLF’s amicus brief, attorneys Jeff Jennings and Christopher Barnewolt write:
“… the premise that it’s less typical for an employer to discriminate against ‘majority groups’ is baseless today. As shown below, the rise of governments and private businesses embracing diversity, inclusion, and equity initiatives (DEI) means that discrimination pervades the modern workplace.”
In a statement to the media, Jeff added to this sentiment:
“Worse, it’s unconstitutional, forcing majority-group employees to meet a higher burden of proof simply because of their race.”
This case is particularly interesting due to what Justice Neil Gorsuch called a “radical agreement” amongst all parties involved. The question before the Court is to determine “whether a majority-group plaintiff has to show something more than a minority-group plaintiff, here, whether a straight person has to show more than a gay person,” as Justice Elena Kagan explains. Surprisingly, not only do all the justices seem to be in agreement on this question, but also the attorneys on both sides. Ohio’s own solicitor general, Elliot Gaiser, who represented the Ohio Department of Youth Services, went so far as to condemn the lower court’s decision.
“Ohio agrees it is wrong to hold some litigants to a higher standard because of their protected characteristics,” he said. “The idea that you hold people to different standards because of their protected characteristics is wrong.”
Further demonstrating just how “radical” the agreement on the issue is, both the Trump administration and the Biden administration also agreed that the rule is wrong, the latter even filing a brief on Marlean’s behalf. This shared sentiment shows that equality before the law is a nonpartisan issue. It’s not about ideology; it’s about following the Constitution.
There is so much at stake in this case. Ames v. Ohio Dept. of Youth Services isn’t just about one lawsuit — it’s about whether discrimination law should apply equally to all, regardless of race or sex, or whether courts will continue treating majority-group plaintiffs differently.
