The Supreme Court hears a challenge to a DEI rule that genuinely needs to go

On Wednesday, the Supreme Court will hear its first employment discrimination case since President Donald Trump took power and began a fairly comprehensive assault on diversity, equity, and inclusion (DEI) programs in government and private employment. The case, known as Ames v. Ohio Department of Youth Services, reads like it was generated for the very purpose of fueling opposition to DEI, and could be the end of a strange rule meant to discourage meritless discrimination lawsuits by groups not traditionally discriminated against. That legally dubious, and often impractical, rule used in a handful of federal appeals courts is known as the “background circumstances rule.” It often requires members of a “majority” group to introduce evidence that is not demanded of “minority” plaintiffs. It is highly likely that the Court will say that these appeals courts must abandon this rule. Indeed, the appeals courts’ approach rests on such shaky legal ground that it’s possible that the Supreme Court’s decision will be unanimous. Additionally, Ames is the first Supreme Court case alleging employment discrimination on the basis of sexual orientation since a majority of the justices held that discrimination on this basis is illegal in Bostock v. Clayton County (2020). Though two Republican justices, Chief Justice John Roberts and Justice Neil Gorsuch, joined the Court’s decision in Bostock (Gorsuch even authored it), the Court appeared to back away from Bostock in an odd case involving Biden-era education regulations that the Court handed down last year. None of the parties ask the Court to overrule or even narrow Bostock, but Ames could nonetheless give the justices a chance to clarify whether they stand by that decision. Significantly, Marlean Ames, the plaintiff in Ames, is a straight woman. According to her brief, she was denied a promotion that later went to a lesbian. She also alleges she was later demoted, despite a record of favorable performance reviews, and replaced by a gay man. The crux of her employment discrimination claim is that both of these actions were taken because she is heterosexual. The lower courts that heard her case, however, ruled against her before determining if this claim has merit, arguing that Ames failed to meet the standard of evidence required by the “background circumstances” rule. The core question facing the justices is whether courts can effectively require members of a “majority group” to provide evidence that is not required of minority plaintiffs. Under both federal law and the Supreme Court’s precedents, the answer to this question is almost certainly “no.” Still, while it is hard to imagine the justices upholding the Sixth Circuit’s “background circumstances” rule, and a decision striking down that rule would hardly upend federal employment discrimination law, the case is worth watching because it potentially gives the Court’s Republican majority a vehicle to lash out more broadly at DEI programs. What is unsure is whether the justices will seize the opportunity this case presents. The federal law banning employment discrimination applies equally to majority and minority plaintiffs The “background circumstances” rule at the heart of Ames was first invented by the DC Circuit in 1981. Though that opinion acknowledged that “whites are also a protected group under Title VII,” the federal law governing many forms of employment discrimination, it reasoned that “it defies common sense to suggest that the promotion of a Black employee justifies an inference of prejudice against white co-workers in our present society.” Accordingly, the DC Circuit announced that “majority plaintiffs” in Title VII cases must demonstrate early in their lawsuit that the defendant is the “unusual employer who discriminates against the majority.” A handful of other federal appeals courts, including the Sixth Circuit, have since embraced this rule. It is, frankly, baffling that this rule survived as long as it has. Title VII makes no distinctions between suits brought by majority plaintiffs and suits brought by members of a minority group. And the Supreme Court’s decisions stating that Title VII suits by members of historically privileged groups should be treated no differently than any other Title VII suit stretch back decades, long before the Republican Party’s hard turn against DEI programs of all kinds. Title VII states that it is illegal for an employer to discriminate against anyone “because of such individual’s race, color, religion, sex, or national origin.” That’s broad language that applies to white, Christian, male, and American workers no differently than it does to anyone else. (Bostock held that discrimination on the basis of sexual orientation is a form of “sex” discrimination, which is why Ames’s case may be brought under Title VII.) Similarly, a unanimous Supreme Court held in McDonald v. Santa Fe Trail Transportation Co. (1976) that “Title VII prohibits racial discrimination against” white people “upon the same standards as would be applicable” if they were Black. The author of that statement, by the way, was Justice Thurgood Marshall, the legendary civil rights lawyer who argued Brown v. Board of Education. Five years before the DC Circuit created the background circumstances rule, in other words, a unanimous Supreme Court held that courts should decide Title VII suits brought by members of the majority “upon the same standards” as suits brought by a minority plaintiff. The DC Circuit should have followed the Supreme Court’s decision in McDonald, rather than creating a rule that’s inconsistent with the Court’s holding. There are also serious practical difficulties in applying a rule that treats members of a majority group differently than members of a minority, at least in these circumstances. Women, for example, slightly outnumber men in the United States. Does that mean that a man alleging employment discrimination carries a lower burden than a similarly situated woman? Similarly, the background circumstances rule could cause a case to turn on very fine distinctions regarding an employer’s motives. Suppose, for example, that a worker alleges they were fired because their boss objected to Catholic iconography displayed on the worker’s desk. Catholics make up about 20 percent of the US population, so if this case is characterized as anti-Catholic discrimination, the plaintiff will not have to demonstrate the background circumstances required by the DC and Sixth Circuits. But Christians as a whole make up a majority of the US population. So if this exact same case is reframed as a case about discrimination against Christians, rather than a case about Catholics, then the background circumstances rule would apply. All of which is to say: The law has been clear for a half-century that Title VII does not draw distinctions between majority and minority plaintiffs. And this particular rule is hard to apply to a large number of potential cases. There is some risk that the Court will use this case to make a broader attack on DEI programs The Court could hand down a narrow opinion in Ames that, much like Justice Marshall’s McDonald opinion, simply announces that Title VII does not draw distinctions based on majority or minority status. But the Court also has a Republican majority, and the Republican Party is currently on a tear against DEI programs of all kinds. So it is possible that a majority of the justices will join a broader opinion in Ames. Though Ames’s own brief largely makes a modest attack on the background circumstances rule, a few briefs filed by right-wing legal organizations suggest a more aggressive approach. One implies that DEI programs of all kinds are a form of invidious discrimination, claiming that “the rise of governments and private businesses embracing diversity, inclusion, and equity initiatives (DEI) means that discrimination pervades the modern workplace.” A few quote Judge James Ho, a Trump judge known for making trollish legal arguments, who argues that “diversity has increasingly become a code word for discrimination.” The reality is that “DEI” is a broad and somewhat vague term that encompasses both programs that are unquestionably illegal (such as racial quotas), and also more benign programs such as enabling workers to form affinity groups based on their identity, or holding recruitment drives at historically Black colleges and universities in order to identify highly qualified Black job applicants. At the very least, the Court should look at each of the various programs that can fit under the “DEI” umbrella individually, rather than issuing a blanket statement that may sweep too broadly. The law supports a narrow decision against the background circumstances rule. But if the Republican justices decide to follow party orthodoxy, they could go much further, potentially disrupting even fairly uncontroversial efforts to diversify workplaces.

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The Supreme Court hears a challenge to a DEI rule that genuinely needs to go