The purpose of our workplace discrimination laws is to ensure that all employees are treated equally, right? Maybe … but maybe not.Next term, the Supreme Court will hear the appeal of Marlean Ames, a straight woman who sued the Department of Youth Services for sex discrimination under Title VII. She claimed she was discriminated against her because of her sexual orientation, alleging that she was passed over for a promotion, demoted, and that a gay man was then promoted into her former position.
Ames claimed sex discrimination, but the 6th Circuit disagreed, citing her failure to establish the necessary "background circumstances."
What are the "background circumstances" needed to show that an employer is among the small subset that discriminates against the majority? According to the 6th Circuit, "Plaintiffs typically make that showing with evidence that a member of the relevant minority group (here, gay people) made the employment decision at issue, or with statistical evidence showing a pattern of discrimination by the employer against members of the majority group." Ames lost because she showed neither.
In his concurring opinion, Judge Kethledge described the "background circumstances" rule in "reverse" discrimination cases as "a deep scratch across the surface" of Title VII. "The statute," he wrote, "bars discrimination against 'any individual' on the grounds specified therein." By treating "some 'individuals' worse than others," it discriminates on the very grounds the statute forbids.
And that's the issue SCOTUS will address. Does "discrimination" mean "discrimination regardless of majority or minority status," or does it mean something different when the claim is brought by a member of the majority class?
Carnac the Magnificent tells me to expect a reversal, which would have significant implications for all employees. As Reuters points out, "A Supreme Court ruling in favor of Ames could provide a boost to the growing number of lawsuits by white and straight workers claiming they were discriminated against under company DEI policies."
Keep a close eye on this case—it could become one of the most pivotal SCOTUS employment law decisions of the past many years.