(CNN) — The Supreme Court appeared virtually certain to side with an Ohio woman who lost a “reverse discrimination” suit against her employer when her gay boss declined to promote her, a decision that will likely make it easier for some White and straight employees to win similar claims.
At a moment when President Donald Trump has politicized workplace diversity efforts, both the court’s conservative and liberal justices – as well as the attorneys arguing the case – appeared during brief arguments Wednesday to agree that some courts are misreading the law and erecting unfair burdens against discrimination suits filed by employees who are members of a majority group.
“We’re in radical agreement today,” Justice Neil Gorsuch, a member of the court’s conservative wing, quipped at one point.
Marlean Ames started working for Ohio’s state government in 2004 and steadily rose through the ranks at the Department of Youth Services. She claims that in 2017 she started reporting to a gay boss and was passed over for a promotion that was offered to another gay woman.
Ames is challenging a requirement applied in five appeals courts across the nation that “majority” Americans raising discrimination claims must demonstrate “background circumstances” in order to pursue their suit. A plaintiff might meet that requirement, for instance, by providing statistical evidence documenting a pattern of discrimination against members of a majority.
Ames couldn’t do that in this case and so she lost.
An employee who is a member of a minority group, however, does not face that same initial hurdle.
The requirement was rooted in the notion that it is unusual for an employer to discriminate against a member of a majority group. But neither federal anti-discrimination law nor Supreme Court precedent speak to creating one set of requirements for a White employee to file a discrimination suit and a different set for a Black employee.
The case landed on the Supreme Court’s docket last fall, about a month before Trump was elected and pledged to clamp down diversity and inclusion efforts in both the government and the private sector. But Ames’ case is more procedural than those broader pronouncements, which triggered a series of other lawsuits. In one indication of that, both the Trump and Biden administrations agreed that the 6th US Circuit Court of Appeals decision against Ames should be reconsidered.
Neither Trump nor the broader political debates over diversity he has stoked came up during the court’s session.
The justices zipped through their questioning of attorneys for Ames and the federal government on Wednesday and then repeatedly tore into T. Elliot Gaiser, the lawyer representing Ohio.
“You agree that those passages are wrong,” Justice Brett Kavanaugh, a conservative, pressed the state solicitor general on the section of the appeals court opinion that required Ames to show “background circumstances” to win her suit.
“Were not defending the exact language there,” Gaiser acknowledged.
That prompted an incredulous Justice Elena Kagan to jump in.
“I mean, the exact language? You’re defending something like that language?” asked Kagan, a member of the court’s liberal wing. “This is what the court said … I don’t know exactly what to make of this.”
Kavanaugh pressed ahead, asking Gaiser whether Ohio agreed with Ames that the central point of the appeal court decision was wrong.
Gaiser said he agreed on that point, but pressed the justices to craft an opinion that would give guidance to lower courts to avoid tipping the scales too far toward employees in similar suits.
A majority of the court seemed unreceptive to that argument as well.
One telling – and virtually unheard of – sign of just how clearly the court appeared to ready to side with Ames: The justices wrapped up their arguments five minutes early.
The-CNN-Wire
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