Straight woman's job discrimination claim likely to prevail with SCOTUS rebuke of lower court: expert

Petitioner Marlean Ames claims that she was demoted and passed over for a position in the Ohio youth corrections system in favor of two less-qualified gay employees who had neither applied for nor interviewed for the roles.

At issue in her case is a higher burden of proof some lower courts have required for those considered to be in "majority groups" - in this case heterosexuals - to prove discrimination occurred under Title VII of the Civil Rights Act. 

Trump-appointed Justice Brett Kavanaugh said Wednesday all the court really needs to do is issue "a really short opinion that says discrimination on the basis of sexual orientation, whether it's because you're gay or because you're straight, is prohibited, and the rules are the same."

"I mean, it's a little bit of a peculiar situation, isn't it, because this is what the court said," Kagan said. "And you're up here, and I don't know exactly what to make of this."

Gaiser said he agreed with Ames "on that major premise point," but "we don't think Ms. Ames proved enough evidence to showcase a discrimination claim."

"I think we had six depositions under oath, if you can't show any evidence that the employer was motivated by a protected characteristic when they took the adverse action, and certainly, if you can't show an adverse action at all, that's not enough to create any burden of production for the employer," Gaiser said. "And that sample pattern approved the four elements that McDonnell Douglas lays out, courts have adapted that under this court's guidance."

The governing precedent in question is McDonnell Douglas Corp. v. Green, a 1973 case where the high court established a four-step process for handling discrimination cases based on indirect evidence. Gaiser told the justices that Ames has not met the criteria set by those tests, even as the appeals court's application of the precedent was wrong.

The "higher burden of proof" at the center of the case, which several circuit courts choose to apply, "is not supported by the text of Title VII," GianCarlo Canaparo, senior legal expert at Heritage Foundation, told Fox News Digital in an interview. 

Canaparo said that during oral arguments "pretty much everybody, except maybe Justice Jackson, said, 'Look, the text is what it is. It's really clear.'"

"Now that sounds good in theory, but how it actually works out is that the evidentiary burden that a lot of plaintiffs have to put up in the first instance is so low that what functionally happens in a lot of cases is that the defendant, the employer, has to prove its own innocence," he said.  

Gaiser's proposal, according to Canaparo, is to raise the initial burden on plaintiffs so that they must present a stronger case before the employer is required to defend itself, while maintaining an equal standard for all.

"I think Ames will win, but that means a couple things. Number one, it means that traditionally created doctrines that make the Civil Rights Act apply unequally are on the way out," he said. 

"I think it'll have a pretty powerful effect in continuing to shape the country toward the colorblind understanding of the law," he said.

Meanwhile, Andrea Lucas, acting chair of the Equal Employment Opportunity Commission, wrote in a post on X that the "neutral standard that SCOTUS likely will land on in Ames" already applies "and has for decades."

"@USEEOC unanimously signed @TheJusticeDept's brief in Ames. Don't wait for SCOTUS's opinion-comply with Title VII now," she wrote. 

Lucas told Fox News Digital in a phone interview Thursday that "the EOC has never held that position" of requiring a heightened background circumstances test for a "majority" plaintiff or group.

"The EOC position is that this background circumstances test conflicts with the McDonnell Douglas standard. It conflicts with Supreme Court precedent," Lucas said. "We already had policy and enforcement positions that we've taken for decades."

In 2017, Ames began reporting to a new supervisor, Ginine Trim, who is openly gay. During her 2018 performance review, Trim rated Ames as meeting expectations in most areas and exceeding them in one.

However, in 2019, after Ames applied for a bureau chief position and did not get it, she was removed from her program administrator role, the court filing states. The department's assistant director and HR head, both of whom are straight, offered her the choice to return to her previous job with a pay cut. Ames chose to remain with the department and was later promoted to a different program administrator position. The department then hired a gay woman for the bureau chief role Ames had wanted, and a gay man for the program administrator position she previously held.

The Supreme Court is expected to release its ruling by the end of June.