By Mark Carey
In case you were mistaken, we are all “individually” created equal and treated equally under the eyes of the law, especially in the workplace. There is zero preference for any protected group of employees, minority or majority employees. If employers use DEI, they embrace illegal employment discrimination.
Supreme Court Issues Unanimous Decision
On June 5, 2025, the U.S. Supreme Court reminded us of this very important fundamental principle, individual equality, of our American employment experience in the unanimous decision in Ames v. Ohio Dept. of Youth Services, 2025 WL 1583264. The Court held that Marlean Ames, a heterosexual woman, could maintain a case of “reverse discrimination” against her employer the Ohio Department of Youth Services, which operates the State’s juvenile correctional system.
“In 2004, the agency hired (Ames)…to serve as an executive secretary. Ames was eventually promoted to program administrator and, in 2019, applied for a newly created management position in the agency’s Office of Quality and Improvement. Although the agency interviewed her for the position, it ultimately hired a different candidate –a lesbian woman – to fill the role. A few days after Ames interviewed for the management position, her supervisors removed her from her role as program administrator. She accepted a demotion to the secretarial role she had held when she first joined the agency – a move that resulted in a significant pay cut. The agency then hired a gay man to fill the vacant program-administrator position. Ames subsequently filed this lawsuit against the agency under Title VII, alleging that she was denied the management promotion and demoted because of her sexual orientation. Id. at *2.
No Proof of Background Circumstances Required
The case is significant because the unanimous court reminds us that under the 1964 Civil Rights Act (“Title VII”) we are all treated equally under the eyes of the law, not differentially/preferentially because of our race, sex, sexual orientation etc. based on historical background experiences of the protected group. The decision resolves a split of decisions among federal courts that members of majority groups (in this case heterosexuals) were required to demonstrate additional proof that “ ‘background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.’ ” Id. at *3. This is a burden of proof not required of employees claiming sexual orientation discrimination which is Ames’s comparator group in her case. Ordinarily, an employee must assert a prima facie case of employment discrimination, by demonstrating an inference or direct evidence their protected group characteristic, in this case heterosexual, was used in the decision making process. The unanimous Court sent the case back to the trial court to continue the litigation into trial. It is extremely unlikely the case will proceed to trial because Ohio will settle the case. The unanimous decision cast doubt on all of the legal arguments Ohio asserted, even ones that were not on appeal – hence the reason the case will soon settle as Ohio lost all of its legal leverage in the case.
Everyone is Protected!
The unanimous Court has sent the stern message again, albeit indirectly in this case, that diversity, equity and inclusion (“DEI”) is fundamentally illegal in the workplace. Ames was heterosexual, yet her employer favored other employees because of their sexual orientation, which was illegal. Ames filed a “reverse discrimination” case under Title VII. But this title is a misnomer as there is no such thing as “reverse discrimination”. Title VII uses the phrase “individual” denoting everyone is treated equally, not groups of minorities, and it also covers majorities including all heterosexual individuals. Yes, history can confuse even federal courts into making judicial precedents beyond what Congress intended. The unanimous Court is not engaging in judicial legislating, but only interpreting the exact words that Congress put into the statute in 1964; the term individual is obvious in its plain meaning.
If In Doubt File an Appeal
The other important aspect of the Ames decision is a fundamental one. If in doubt, appeal. Here, the State of Ohio fought Ames in the trial court, and she lost. Ames filed an appeal and again lost at the 6th Circuit Court of Appeals. When the case finally reached the Supreme Court, the unanimous Court, via Justice Jackson, was highly critical of the baseless nature of Ohio’s legal argument, “[i]n short, the Sixth Circuit expressly based its holding affirming summary judgment in favor of the agency on Ames’s failure to satisfy a heightened evidentiary standard. Ohio’s attempt to recast the ‘background circumstances’ rule as an application of the ordinary prima facie standard thus misses the mark by a mile.” Id at *5 (emphasis added). In my opinion, Ohio sought to push an agenda of DEI and supported the policy through the appeals process, only to be told it was an illegal agenda that discriminated against a heterosexual woman.
If You Are Treated Differently, File a Complaint
Employees should never assume that just because they are within a majority group they have no protection. This was never the case under Title VII. The case reminds us of our individuality in employment and what Title VII plainly states. If you believe you are not receiving the same treatment, benefits, compensation etc. as compared to minority group employees, you may have a case to argue that you are being subjected to intentional employment discrimination. You have rights just like every other employee and you need to assert them at the right time and manner. But a word of caution, before you take action, consider the impact your internal/external complaint will have on your employment and how the employer will react. The complaint you make could quickly end your employment. This would result in an additional claim for retaliation, and it is easy to prove.
If you would like more information about this article or to speak to one of our employment attorneys, please contact Carey & Associates, P.C. at info@capclaw.com or call 203-255-4150. Also remember to visit EmployeeSurvival.com
