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An incoherent legal framework, created and expanded by judicial fiat, allowed employers to more easily discriminate against “majority groups” and ultimately helped fuel the toxic growth of identity politics and DEI policies.
On Thursday, the U.S. Supreme Court ruled unanimously last week that the Sixth Circuit Court of Appeals erred by applying a higher evidentiary burden to a woman who claimed that her employer, the Ohio Department of Youth Services, discriminated against her because she is a heterosexual.
Marlean Ames was hired by the Ohio Department of Youth Services in 2004. In 2019, she applied for a newly created position that would be a promotion. Her employer interviewed her for the position but ultimately hired a different candidate, a lesbian.
Only a few days later, Ames was demoted and received a significant pay cut. The agency then hired a gay man to fill her previous role of program administrator.
Ames filed suit under Title VII of the Civil Rights Act of 1964, alleging that she was denied the promotion and demoted because of her sexual orientation. Title VII prohibits employers from discriminating on the basis of race, sex, religion, and sexual orientation when hiring, firing, or promoting employees.
A federal district court granted summary judgment in favor of Ames’s employer. She appealed the decision, but the U.S. Court of Appeals for the Sixth Circuit also ruled in favor of Ohio.
The Sixth Circuit applied what is known as the McDonnell Douglas framework, named for the Supreme Court decision in McDonnell Douglas Corp. v. Green, which established the test for determining certain disparate treatment cases relying on circumstantial evidence
The framework contains three steps: 1) the plaintiff bears the burden of establishing that there is enough evidence to support an inference of discriminatory motive; 2) if the plaintiff meets that standard, the “burden shifts to the employer to articulate some legitimate, nondiscriminatory reason for the employer’s rejection”; and 3) if the employer meets that burden, the plaintiff is given the chance to prove that the employer’s stated reason was a pretext for discrimination.
However, the Sixth Circuit, in following this framework and other follow-on precedents, ruled that plaintiffs belonging to a so-called “majority group” were required to provide more evidence of discrimination than minority plaintiffs.
The Sixth Circuit rule, referred to as the “background circumstances” rule, says that a plaintiff must provide “‘background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.”
The Sixth Circuit ruled that a petitioner from a majority group may satisfy this burden by showing “evidence that a member of the relevant minority group (here, gay people) made the employment decision at issue, or with statistical evidence showing a pattern of discrimination . . . against members of the majority group.”
Ames appealed this decision, and the Supreme Court agreed to review the case, citing disagreement among other circuit courts over the legitimacy of the “background circumstances” test.
Ohio argued before the Supreme Court that the rule doesn’t create additional requirements for plaintiffs belonging to a majority group but is “just another way of asking whether the circumstances surrounding an employment decision…suggest that the decision was because of a protected characteristic.”
Justice Kentanji Brown Jackson, writing for the majority, pointed out this explanation was at odds with the Sixth Circuit’s which had clearly expressed that majority groups have an additional requirement.
Brown Jackson wrote,
“The Sixth Circuit’s ‘background circumstances’ rule requires plaintiffs who are members of a majority group to bear an additional burden at step one. But the text of Title VII’s disparate-treatment provision draws no distinctions between majority-group plaintiffs and minority-group plaintiffs. The provision focuses on individuals rather than groups, barring discrimination against ‘any individual’ because of protected characteristics. Congress left no room for courts to impose special requirements on majority-group plaintiffs alone.”
She added, “This Court’s precedents reinforce that understanding of the statute, and make clear that the standard for proving disparate treatment under Title VII does not vary based on whether or not the plaintiff is a member of a majority group.”
The Court vacated the Sixth Circuit’s ruling and sent the case back for the lower courts to decide Ames’ case based on a proper standard.
Justice Clarence Thomas, a former chairman of the Equal Employment Opportunity Commission before he was appointed to the Supreme Court, wrote a concurring opinion (joined by Justice Neil Gorsuch) in which he noted that both the background circumstances rule and the McDonnell Douglas framework were creations of the judiciary and were absent from the text of Title VII.
“Judge-made doctrines have a tendency to distort the underlying statutory text, impose unnecessary burdens on litigants, and cause confusion for courts.
Title VII bars employment discrimination against ‘any individual’ because of such individual’s race, color, religion, sex, or national origin… The ‘background circumstances’ rule plainly contravenes that statutory command by imposing a higher burden on some individuals based solely on their membership in a particular demographic group. This rule is a product of improper judicial lawmaking.”
Thomas explained that the rule was created by D.C. Circuit judges in Parker v. Baltimore & Ohio R. Co.
“Applying their own ‘common sense,’ these judges determined that extra evidence is required to prove discrimination when a Title VII plaintiff is white.”
He went on to note the absurdity of judges trying to classify plaintiffs as members of majority or minority groups considering the multicultural nature of the United States, the differing demographics based on location, and the impossibility of assigning a person to a particular religious classification.
He concluded,
“Thankfully, today’s decision obviates the need for courts to engage in the ‘sordid business’ of ‘divvying us up by race’ or any other protected trait. I simply observe that the ‘background circumstances’ rule is emblematic of the serious challenges that can arise when judges invent atextual requirements. For too long, that rule put ‘a deep scratch across [the] surface’ of Title VII. I am pleased that the Court rejects it in full today.”
The ruling in Ames v. Ohio Department of Youth Services shows the hazard of the judiciary legislating from the bench, as well as the danger of identity politics and reverse discrimination.
The judicial branch exists to ensure that any laws passed are in line with the Constitution and to ensure that constitutional rights are not violated. It does not exist to create law — that is the legislative branch’s job.
It’s ironic, then, that the branch most responsible for interpreting and upholding the Constitution has so frequently violated the separation of powers doctrine by rewriting statutes in ways that suit their own view of the constitutional question at issue.
In recent years, many of these prior precedents have been overturned, among them the Lemon Test and the Chevron doctrine, but not before they had done a grave injustice to the constitutional order and the rights of the American people.
When the judiciary steps outside its role and alters or creates law, it does so by judicial fiat and as an unelected branch. Congress is made up of two houses, with each of the 535 members elected by citizens. Laws that are passed are intended to be fiercely debated and meticulously crafted to serve the interests of the people. Lawmakers choose the language present in bills for a deliberate purpose. Every word is important.
However, when judges, who are not accountable to the people via elections, create extratextual tests, provisions, or even entire rights (for example, in Roe v. Wade), they do so as oligarchs, without intense debate, without representing the interests of the entire population, and without expertise.
The result is often against the will of the people and fraught with negative and widespread consequences. These judicial actions are, as Thomas noted, difficult for other courts to follow. They create confusing and incoherent tests and standards that then create binding precedents.
Courts would be wise to follow Thomas’s advice and stick to their area of authority and expertise.
In this instance, when judges drifted outside the law and created the background circumstances rule, they did so through the framework of identity politics and reverse discrimination.
Despite what the left may want us all to believe, people are not defined by skin color, ethnic lineage, or sex. To be sure, the characteristics that make up a person all impact who that person is, but they should not create delineations between citizens nor in the law.
Creating separate and more burdensome legal standards for so-called majority groups is not only nonsensical, it’s discriminatory. Creating advantages for some groups not extended to others is also discriminatory. The law demands that all citizens be treated equally, which is the promise and the foundation of our nation.
While our nation did not always meet that standard, it gradually progressed to become an equal society. Proponents of anti-white or anti-male or anti-heterosexual discrimination would take us in the wrong direction, once again creating groups of people who are treated more favorably than others. Such a concept is appalling to the Constitution and must be rejected to maintain a just society.
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