In Ames v. Ohio Youth Services, the Supreme Court Follows the Text and Rejects Discrimination

On June 5, the Supreme Court issued a unanimous decision in Ames v. Ohio Department of Youth Services. The opinion was written by Justice Jackson, and it held that the Sixth Circuit had incorrectly applied a heightened burden in employment discrimination cases where the plaintiff is part of a “majority” group—think heterosexuals, males, or Caucasian individuals. The Sixth Circuit’s test has been called the “background circumstances” test because majority group plaintiffs were generally required to establish additional circumstances to explain why an employer would discriminate against someone who was allegedly part of the majority of the workforce.

Let’s take a step back. Under Title VII of the 1964 Civil Rights Act, employers generally may not discriminate against applicants or employees based on race or sex, among other characteristics. In order to adjudicate claims of discrimination, many lower courts used (and continue to use) a burden-shifting test that was announced in a case called McDonnell Douglas Corp. v. Green. That test first requires plaintiffs to present a prima facie case of discrimination; employers then have the burden to establish a race-neutral reason for their adverse treatment of the plaintiff; and then finally, plaintiffs may establish that an employer’s proffered neutral reason for adverse action is actually a pretext for discrimination.

In Ames, as in other Title VII cases, the “background circumstances” test came into play at Step 1. Ms. Ames alleged that she suffered discrimination when homosexual employees were treated more favorably than herself, a heterosexual employee. She pointed specifically to a gay female who was promoted over her, and a gay male who filled her position after she was demoted. Much of Ms. Ames’ argument relied on the logic of the Supreme Court’s decision in Bostock v. Clayton County, Georgia, which held that discrimination based on homosexuality constitutes discrimination based on sex. Ms. Ames argued that the reverse should be true as well.