While the eyes of the world look on in disbelief at the dismantling of the U.S. government, the U.S. Supreme Court dances on. On Wednesday, February 26, the court will entertain arguments as to whether an employee, if a member of a majority group, must show additional evidence to prove discrimination based on heterosexual orientation.
Here's what readers need to know to follow the argument and understand the consequences of the court's eventual ruling.
The case: The case is Marlean Ames v. Ohio Department of Youth Services. Ames alleges that her employer, a state juvenile correctional facility, violated Title VII's ban on discrimination based on sex and sexual orientation. In order to hear Ames' appeal, at least four justices of the U.S. Supreme Court had to agree.
The case will be heard Wednesday at 7 a.m. Pacific time.
Who brought the appeal: Ames is a 60-year-old straight white woman who worked at an Ohio prison facility for 15 years when, in 2019, she applied for a promotion. She did not get the promotion; instead, she was demoted. And the department gave the promotion to a young gay woman and put a young gay man in Ames' previous position.
The respondent: The Ohio Department of Youth Services is a facility for confining young people who have been convicted of felons. The facility provides the young people with educational and vocational opportunities.
The decision being scrutinized: Ames appealed the decision of a three-judge panel of the 6th U.S. Circuit Court of Appeals. The three judges included two appointees of former President George W. Bush and one of former President Bill Clinton. The panel, without dissent, upheld a district court decision that said Ames failed to explain "background circumstances" to support her claim of sexual orientation discrimination.
The 6th Circuit decision noted that the Supreme Court's 2020 opinion in Bostock v. Clayton County made clear that "sexual orientation ... is a protected ground under Title VII. ..." Bostock was decided on a 6-3 vote that held that Title VII, a federal law barring discrimination on the basis of "sex" in employment also bars discrimination based on "sexual orientation" and "gender status." The 6th Circuit panel noted that, in this case, two straight supervisors took the adverse actions against Ames, thus making her sexual orientation discrimination claim unsupported by the facts.
Why did the court agree to hear this case? Chances are the four justices who wanted to hear this case pointed to the fact that some appeals courts – but not all – require majority group plaintiffs to provide an extra level of proof to support their reverse discrimination claim. The U.S. Equal Employment Opportunity Commission and the Department of Justice under former President Joe Biden did not support requiring majority group plaintiffs to meet this extra requirement. So, while this case is about sexual orientation discrimination on the surface, it is really about how hard a court can make it for straights to prove sexual orientation discrimination.
The legal question being argued: "Whether, in addition to pleading the other elements of Title VII, a majority-group plaintiff must show background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority."
Quirky point of interest: Neither the American Civil Liberties Union nor any of three LGBTQ legal groups – Lambda Legal Defense and Education Fund, National Center for Lesbian Rights, and GLBTQ Legal Advocates and Defenders – filed a friend-of-the-court brief in this case. None responded to requests for comment. A brief from the NAACP Legal Defense Fund opposed Ames' effort to eliminate the "background circumstances" requirement for plaintiffs who are members of a majority, noting that studies show majority group plaintiffs in Title VII cases are already "more likely to prevail" than minority group plaintiffs.
The NAACP LDF also noted that, "LGBTQ people ... experience high rates of discrimination in the workplace, with studies showing over half of LGBTQ workers surveyed report experiencing discrimination or harassment in the workplace."
"Further, 22% of LGBTQ workers surveyed noted that they had been fired or not hired, and 21% reported being denied a promotion, wage, equal wages, or training opportunities, because of their LGBTQ status," the brief stated. "Transgender people, especially, report high rates of discrimination, with surveys showing that 70% to 90% of transgender people surveyed have experienced workplace discrimination."
Decision expected: The Supreme Court has released most of its LGBTQ-related decisions in June, the last month of the session.
Link for live audio streaming is here.
Link for recording and/or transcript is here.
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