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The Supreme Court on Wednesday appeared to support the idea of making it easier for men and people who are White or straight to sue for job discrimination, based on oral arguments in the case of an Ohio woman who claims she faced anti-straight bias in the workplace.
The high court's conservative supermajority and at least some of the liberal justices seemed receptive to arguments by Marlean Ames, who is challenging rulings by many of the nation's courts that require members of majority groups to meet a higher standard to prove job discrimination than groups that have traditionally faced bias.
The justices appeared ready to strike down the test. Both conservative and liberal justices peppered the Ohio solicitor general over the state's opposition to Ames's arguments, pushing him to eventually affirm that he, too, thought minorities and members of majority groups should be treated equally.
"We are in radical agreement," said Justice Neil M. Gorsuch, a striking statement for a court that has sharply divided along ideological lines in recent years on issues from abortion to affirmative action.
Ames, a straight White woman, filed a job discrimination lawsuit in 2020 after she was removed from her job as an administrator at the Ohio government agency overseeing juvenile corrections. Her position was given to a younger gay man.
Ames said she was also unfairly passed over for another management role, which went to a woman whom Ames considered to be less qualified. Ames said the woman, who is a lesbian, had not initially expressed interest in the job.
The job discrimination lawsuit Ames filed against the Ohio Department of Youth Services foundered in the federal courts in Ohio.
There, and in many other U.S. appeals courts, plaintiffs must prove discrimination claims through direct evidence, or by mounting a circumstantial case because evidence of workplace bias can be hard to obtain.
Those courts require members of majority groups mounting a circumstantial case to meet an extra burden of proof not required of minorities - known as "background circumstances." White people, straight people and men must show that their employer is the unusual one that discriminates against majority groups, which have not historically faced discrimination.
Lower courts ruled against Ames before her lawsuit went to trial, finding that she was unable to meet the background circumstances standard.
On Wednesday, a lawyer for Ames argued that the standard fundamentally violated a portion of the landmark 1964 Civil Rights Act that outlawed discrimination in the workplace based on sex, race, color, religion or national origin because it treats groups differently based on their background.
Xiao Wang pointed the justices to an inscription carved on the outside of the high court: "Equal Justice Under Law."
"Ms. Ames is asking for is equal justice under law," Wang said. "Not more justice … but certainly not less. And certainly not less because of the color of her skin or because of her sex or because of her religion."
That argument seemed to resonate.
In her questions to T. Elliot Gaiser, the Ohio solicitor general, Justice Elena Kagan highlighted a passage from a lower-court ruling in Ames's case that she said was "absolutely critical."
"Because Ames is heterosexual, she must make a showing in addition to the usual ones for establishing a … case," said Kagan, a liberal. "And then it says, you know, Ames's … case would have been easy to make had she belonged to the relevant minority group here, gay people."
Justice Brett M. Kavanaugh, a conservative, picked up the thread: "You agree those passages are wrong?"
Gaiser conceded that he did. "I think the idea that you hold people to different standards because of their protected characteristics is wrong," he said.
Gaiser told the justices that Ohio was less interested in defending the background circumstances standard than arguing that Ames had simply not met the burden of proof in her case. He said it would have failed regardless of the standard because she was not able to marshal evidence of anti-straight bias.
The NAACP Legal Defense and Education Fund made a forceful argument in favor of the standard in a friend-of-the-court brief. The group said that different standards for majority and minority groups were appropriate because of the nature of inequality in America: Black people and those in other minority groups have historically been the target of bias, while "reverse discrimination" is relatively rare.
Corporations and employment lawyers are closely watching the case because many think a ruling in favor of Ames could unleash a wave of workplace discrimination claims by White people, straight people and men.
Wang discounted that idea, saying the appeals courts that don't employ the "background standard" have not seen a larger number of reverse discrimination cases.
The case coincides with President Donald Trump's assault on diversity, equity and inclusion (DEI) initiatives. Trump has issued executive orders targeting DEI programs in the federal government - parts of which a federal judge has temporarily blocked - and has ordered the Justice Department and the Equal Opportunity Employment Commission to investigate programs in the private sector.
Ames's case does not directly implicate DEI initiatives, but employment lawyers said a ruling for Ames and the backlash against DEI could make some companies think twice about their DEI programs.
A ruling in the case is expected by this summer.