The U.S. Supreme Court seemed sympathetic on Feb. 26 to the arguments of an Ohio woman who alleges the state demoted her because she is heterosexual.
The court heard oral argument in Ames v. Ohio Department of Youth Services.
In 2017, she began reporting to a woman who identifies as homosexual. She applied to be promoted to the position of bureau chief but did not receive the promotion. The successful candidate had not sought the position and allegedly “lacked the minimum qualifications” for it. The department “[circumvented] its own internal procedures” to promote the candidate, the petition alleges.
Soon, the department took the program administrator position away from Ames and allowed her to choose between termination or demotion. The department then installed a gay man as program administrator, even though he was not qualified and had not sought the post, the petition adds.
When the case went to the U.S. Court of Appeals for the Sixth Circuit, the court cited the Supreme Court’s decision in McDonnell Douglas Corp. v. Green (1973) and ruled that “Ames’s prima facie case” of discrimination based on sexual orientation was “easy to make,” the petition states.
The McDonnell Douglas decision held that before a plaintiff may move forward with an employment discrimination claim, he first must show he has at least a prima facie case. Prima facie means that a claim that is before a court has merit when accepted at face value and can be legally sufficient to prove a fact or a case unless disproved later.
Ames said in the petition she did not prevail at the Sixth Circuit because it requires “a majority-group plaintiff like Ames—i.e., a heterosexual woman alleging sexual orientation discrimination—must, on top of Title VII’s other requirements, also show background circumstances.”
Ames could win only by showing that a “member of the relevant minority group (here, gay people) made the employment decision at issue” or by providing “statistical evidence showing a pattern of discrimination by the employer against members of the majority group.”
Ames was unable to show background circumstances by referencing a gay woman being promoted instead of her, nor by pointing to the gay man replacing her as program administrator. This is because the Sixth Circuit ruled in Sutherland v. Michigan Department of Treasury (2003) that a majority-group plaintiff “cannot point to her own experience to establish a pattern of discrimination,” the petition said.
The regional courts of appeals are split on the need to demonstrate background circumstances.
The U.S. Courts of Appeals for the District of Columbia and the Seventh, Eighth, and 10th Circuits enforce the background circumstances rule, but the Third and 11th reject it. The First and Fifth Circuits have expressed disapproval of the rule “without explicitly rejecting it,” while the Second, Fourth, and Ninth Circuits have declined to decide the issue, the petition said.
Wang said the background circumstances rule is not consistent with Title VII.
Instead of eradicating discrimination, “it instructs courts to practice it by sorting individuals into majority and minority groups based on their race, their sex, or their protected characteristic,” Wang said.
This is “not consistent with the statute that tells us that we’re supposed to protect all individuals based on the individual case,” he said.
Justice Brett Kavanaugh asked Wang if he wanted the court to issue “a really short opinion that says discrimination on the basis of sexual orientation, whether it’s because you’re gay or ... straight, is prohibited, and the rules are the same whichever way that goes?”
Wang replied, “That’s right.”
Ohio Solicitor General Elliott Gaiser told the justices that “Ohio agrees it is wrong to hold some litigants to a higher standard because of their protected characteristics, but that is not what happened in this case.”
Here, Ames failed to make a prima facie case, as required by McDonnell Douglas, Gaiser argued.
He urged the justices to uphold the Sixth Circuit ruling against Ames.
Regarding Gaiser’s statement about holding some litigants to a higher standard, Justice Neil Gorsuch said, “We’re in radical agreement today on that, it seems to me.”
Department of Justice attorney Ashley Robertson said the Sixth Circuit ruling should be vacated because it “applied a different and more difficult standard to petitioner because it considered her a member of the majority, but Title VII draws no distinctions between plaintiffs based on their race, religion, sex, or other protected characteristic.”
Justice Ketanji Brown Jackson asked Robertson if in the attorney’s experience the prima facie requirement of McDonnell Douglas has led to “widespread misunderstanding of what is supposed to happen?”
Robertson replied that “there has been confusion in the courts of appeals,” and that the Supreme Court could take action “that would go a long way towards addressing that confusion.”
Jackson said, “You’re not proving your case at that point.”
The Supreme Court is expected to rule on the case by the end of June.
