The end is near for on-the-job reverse discrimination — another blow to DEI

The leftists who oppose discrimination against minorities, but favor “reverse discrimination” against other Americans to promote workplace “equity,” are about to lose a legal leg to stand on.

The Supreme Court seems poised, in deciding Ames v. Ohio in the next few weeks, to decapitate the legal viability of reverse discrimination against heterosexuals — and give a strong boost to racial reverse-discrimination claims as well.

Marlean Ames alleged that she suffered employment discrimination as a heterosexual in an Ohio state agency that favored LGBTQ employees.

DEI-infused bureaucracies often consider such policies an acceptable part of their “social justice” agenda.

Federal employment law as written, however, protects everyone equally.

The legal issue before SCOTUS was whether, as a member of the majority heterosexual group, Ames had an extra burden of proof in her discrimination claim that an LGBTQ person would not have to meet.

Ames worked for the Ohio Department of Youth Services, overseeing the confinement and rehabilitation of juvenile felony offenders in the state. She applied for a promotion, but was turned down in favor of a gay person that Ames claims was not qualified for the job.

She was then demoted and replaced by another gay person — who, Ames claimed, was also unqualified.

Ames sued in federal court, asserting her claims under Title VII of the Civil Rights Act, which makes employment discrimination illegal.

But the federal district court threw her case out — because of a decades-old, judge-made legal exception known as the “background circumstances” rule.

That 1981 rule sets a higher bar for a “majority group” plaintiff to make a prima facie, or plausible, case of employment discrimination.

Such a plaintiff must show “background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.” 

And since Ames couldn’t show that the Ohio Department of Youth Services had a history of discriminating against “majority” parties, her case was tossed.

The district court’s decision was affirmed by the federal Sixth Circuit Court of Appeals, where Judge Raymond M. Kethledge noted the obvious irony: “The ‘background circumstances’ rule . . . treats some ‘individuals’ worse than others — in other words, it discriminates — on the very grounds that the statute forbids.”

The Supreme Court accepted the case for review, and the Equal Protection Project, where we both are attorneys, filed an amicus brief supporting Ames’ position. 

We argued that the “background circumstances” rule was both wrong and outdated: “While discrimination against majority citizens may have been an ‘unusual’ event in 1981, it no longer is. Rather, so-called ‘reverse discrimination’ is commonplace.”

EPP alone, we noted, has filed several dozen cases “which entailed discrimination against majority parties.”

The oral argument held on Feb. 26 was a hot bench.

During the hearing Justice Samuel Alito seemed to allude to our brief: “The rule that the Sixth Circuit applied was apparently based on an intuition about the way in which most employers behave,” he said.

“And maybe it was sound at the time [that precedent] was decided. Maybe, as some of the amici have argued, it’s no longer sound today.”

While it’s risky to predict outcomes, it appeared that all nine Supreme Court justices, liberals and conservatives alike, agreed that Ames had gotten a raw deal in the lower courts — because reverse discrimination really is unlawful discrimination, full stop.

“We’re in radical agreement today on that, it seems to me,” Justice Neil Gorsuch commented, drawing laughter in the courtroom.

If that is indeed their decision, Ames would get to litigate her case in the district court once again, without having to meet a higher burden of proof. 

Such a ruling would also have huge implications for discrimination cases beyond anti-heterosexual discrimination: Majority-group employees in all categories, including whites and males, would have equal rights to get their day in court. 

That means racial reverse-discrimination claims would have a greater chance of success, encouraging plaintiffs’ attorneys to take such cases — and putting woke employers on notice that reverse discrimination is unlawful and costly.

It would deal a major, perhaps fatal, blow to the DEI agenda of discriminating to achieve “equity” over equal opportunity.

If the Supreme Court rules as expected, reverse discrimination will soon be just as illegal as regular discrimination is in this country. And that will be a great day for equality in America.

William A. Jacobson is a clinical professor of law at Cornell University and founder of the Equal Protection Project, where James R. Nault is of counsel and a research fellow.