Marlean Ames is a heterosexual woman. During her first 10 years on the job, she received various promotions, moving from executive secretary to program administrator. Then she was assigned a new supervisor, who was a lesbian. Two years after that, Marlean applied for another promotion, but did not get it. Instead, the promotion went to a gay woman with less seniority, Marlean was demoted with a nearly 50% pay cut, and her program administrator position went to a 25-year-old gay man.
Marlean sued for discrimination based on sexual orientation, but the trial and appellate courts dismissed her case. Why? Marlean had evidence that:
- She had a protected characteristic—sexual orientation;
- She was subjected to an adverse employment action;
- She was qualified to perform the job in question; and
- Her employer treated similarly situated employees who were not straight women more favorably.
Normally, that showing would require the employer to defend itself by presenting evidence of its legitimate, non-discriminatory reasons, but not in Marlean’s case. That’s because the Sixth Circuit Court of Appeals, which heard Marlean’s case, is one of five federal appeals courts that require plaintiffs from historically majority communities, so-called “reverse discrimination” claimants, to meet an extra burden of proof: “background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.” Two of the remaining federal appeals courts have expressly rejected the background circumstances requirement, and the other federal appellate courts don’t use it, but have not formally rejected it.
Curing a split in appellate opinions often motivates the Supreme Court, and in October 2024, the U.S. Supreme Court granted review of Marlean’s appeal. That means that we should know by Summer 2025 whether the background circumstances requirement is legal or not. Ames v. Ohio, 87 F.4th 822 (6th Cir. 2023), cert. granted 2024 U.S. LEXIS 3065 (Oct. 4, 2024).
What this means to you:
If the Supreme Court eliminates the background circumstances requirement, it will be easier for men, white people, and others from historically majority communities to pursue discrimination claims. While this could result in an increased number of such claims, an employer’s best risk mitigation strategy remains to make fair and well-reasoned employment decisions, without regard to irrelevant factors such as age, race, and sexual orientation.
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Updated 11-11-2024
Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.
