WASHINGTON — The Supreme Court seemed likely Wednesday to side with an Ohio woman who claims she suffered sex discrimination from her employer because she is straight.
The outcome of the case could remove an additional requirement that some courts apply when members of a majority group, including those who are white and heterosexual, sue for discrimination under federal law.
Justice Brett Kavanaugh stated a way of resolving the case, that seemed to enjoy broad support among his colleagues.
“Discrimination on the basis of sexual orientation, whether you are gay or straight, is prohibited. The rules are the same whichever way it goes,” Kavanaugh said.
The justices heard arguments in an appeal from Marlean Ames, who has worked for the Ohio Department of Youth Services for more than 20 years.
Ames contends she was passed over for a promotion and then demoted because she is heterosexual. Both the job she sought and the one she had held were given to LGBTQ people.
Title VII of the Civil Rights Act of 1964 bars sex discrimination in the workplace. A trial court and the 6th U.S. Circuit Court of Appeals ruled against Ames.
The question for the justices is that the Cincinnati-based 6th Circuit and several other appeals courts covering 20 states and the District of Columbia apply a higher standard when members of a majority group make discrimination claims. People alleging workplace bias have to show “background circumstances,” including that LGBTQ people made the decisions affecting Ames or statistical evidence showing a pattern of discrimination against members of the majority group.
The appeals court noted that Ames didn’t provide any such circumstances.
Ohio Solicitor General T. Elliot Geiser told the justices that the officials who made the job decisions did not even know Ames’ sexual orientation.
But even Geiser didn’t object too much to the narrow outcome that seemed most likely. “Everyone here agrees that everyone should be treated equally,” Geiser said.
His concession prompted Justice Neil Gorsuch to note, “We’re in radical agreement on that today.”
America First Legal and other conservative groups filed briefs arguing that members of majority groups are as likely to face job discrimination, if not more so, because of diversity, equity and inclusion policies.
President Donald Trump has ordered an end to DEI policies in the federal government and has sought to end government support for DEI programs elsewhere. Some of the new administration’s anti-DEI initiatives have been temporarily blocked in federal court.
Lawyers for America First, founded by Trump aide Stephen Miller, wrote that the idea that discrimination against members of majority groups is rare “is highly suspect in this age of hiring based on ‘diversity, equity, and inclusion.’”
But there was no mention of DEI by the justices on Wednesday.
