by Jonathan Turley at Res ipsa loquitor — The thing itself speaks
Yesterday, the Supreme Court handed down three major cases with unanimous decisions. One, Ames v. Ohio Department of Youth Services, raises additional questions over diversity, equity, and inclusion (DEI) programs that have been widely used in higher education and businesses. There is no reason to believe that DEI measures are DOA, but the decision is likely to accelerate challenges based on reverse discrimination after the Court rejected the imposition of an added burden for members of any “majority group” including straight, white males.
The immediate question before the Court was a circuit split over the standard that applies to a member of a “majority” group who claims that he or she was treated unfairly based on majority characteristics. The Sixth Circuit, along with four other circuits, held that such litigants must shoulder additional pleading burdens under Title VII of the Civil Rights Act.
Many of us have long argued that this long-standing rule was itself discriminatory and at odds with both constitutional and statutory authority. It was a bizarre interpretation of a law that barred employees from discriminating based on “race, color, religion, sex, and national origin.” That would ordinarily require a plaintiff to support a claim of disparate treatment by showing that she applied for a position for which she was qualified but was rejected under circumstances giving rise to an inference of unlawful discrimination. However, judges began to add their own burden of white, male or straight litigants in requiring them to show additional “background circumstances” that show the defendant is an “unusual employer” that discriminates against majority groups.
In this case, Marlean Ames, a heterosexual woman, claimed that she was demoted at the Ohio Department of Youth Services after Ginine Trim, a gay woman, replaced her supervisor. Trim hired a younger gay man allegedly based on sexual orientation. Both the district court and the Sixth Circuit dismissed the complaint because Ames failed to identify any other “background circumstances” that demonstrated her employer discriminated against heterosexual women.