Justices Jackson and Thomas, in a Rare Concurrence, Say ‘Majority’ Americans Can Sue for ‘Reverse Discrimination’

It’s not every day that Justices Ketanji Brown Jackson and Clarence Thomas agree on one of the Supreme Court’s rulings. Still, the seemingly impossible happened on Thursday after the court unanimously decided in favor of an Ohio woman who claims she was the victim of “reverse discrimination” at work.Both justices penned the court’s opinion and agreed with Marlean Ames, a government employee for Ohio’s Department of Youth Services, who claimed in a lawsuit against the state that she was passed over for a promotion in 2017 by her gay supervisor because she is a straight female.Ms. Ames, who steadily rose through the ranks after starting with the state government in 2004, alleged that during her application for a promotion, she was turned down for lacking vision and leadership skills. The position to which she applied later went to a gay woman who had less professional experience and did not have a college degree.She also alleged that shortly after, she was demoted at substantially less pay over concerns about her leadership of a program that addressed prison rape. She was replaced by a gay man with less seniority than her.Ms. Ames challenged a requirement applied to her in five separate appeals courts, namely that “majority” Americans — heterosexuals in her case — must prove “background circumstances” with proof that they were discriminated against to pursue a suit. The lower courts said that Ms. Ames had to prove that decisions about her employment were made by “a member of the relevant minority group.”“Our case law thus makes clear that the standard for proving disparate treatment under Title VII does not vary based on whether or not the plaintiff is a member of a majority group,” Justice Jackson wrote in the Court’s opinion.The 6th U.S. Circuit Court of Appeals in Cincinnati — as well as federal appellate courts in Denver, St. Louis, Chicago, and Washington, D.C. — ruled in favor of the state of Ohio during Ms. Ames’s appeals, citing the “background circumstances” mandate.The Sixth Circuit Court had applied a heightened standard, requiring Ms. Ames to show those “background circumstances” suggesting that the employer discriminated against the majority, which is not necessary for minority plaintiffs. The Supreme Court rejected this approach, emphasizing that Title VII’s protections apply equally to all individuals and that courts should not impose additional burdens on majority-group plaintiffs.“Ohio argues that the ‘background circumstances’ rule does not subject majority-group plaintiffs to a heightened evidentiary standard but rather is ‘just another way of asking whether the circumstances surrounding an employment decision, if otherwise unexplained, suggest that the decision was because of a protected characteristic,'” the decision reads.“Ohio’s recasting is directly at odds with the Sixth Circuit’s description of the ‘background circumstances’ rule and its application of that rule in this case,” Justice Jackson said in her opinion.In a concurrent opinion, Justice Thomas said that problems arise when judges create legal rules that are based on interpretations that go beyond the original text of the law.“Judge-made doctrines have a tendency to distort the underlying statutory text, impose unnecessary burdens on litigants, and cause confusion for courts,” he wrote. “The ‘background circumstances’ rule — correctly rejected by the Court today — is one example of this phenomenon.”Ms. Ames’s case was initially taken up by the Supreme Court last fall, about a month before President Trump was elected. Since returning to office, he has politicized DEI efforts in the workplace, but both the current and previous administrations agreed that the 6th Circuit should reconsider its ruling.

Justices Jackson and Thomas, in a Rare Concurrence, Say ‘Majority’ Americans Can Sue for ‘Reverse Discrimination’

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