When favorable treatment looks like discrimination – Mary T. O’Sullivan

By Mary T. O’Sullivan, MSOL, contributing writer on business leadership

“[The Supreme Court’s latest anti-discrimination ruling] … wipes out a hurdle that barred some plaintiffs from demonstrating employers acted with discriminatory motives.” – CNN

Passed over more than once for promotions and finally demoted, Marlean Ames decided to take the issue into her own hands, thereby creating a landmark case for reverse discrimination. A straight woman, who had worked for her employer, the Ohio Department of Youth Services since 2004, Ames began reporting to a lesbian woman in 2017.  In 2019, she applied for a promotion and was denied. In her place, the employer hired a gay woman, with less experience and who lacked a college degree, unlike Ms. Ames. Soon after, Ms. Ames was demoted with a substantial pay cut – half of her original salary – and a gay man with less seniority became her replacement.

The reasons given by the employer for her lack of promotion and demotion appear flimsy at best, and are surely not unfamiliar to many others who fight discriminatory practices at work. Typical rationalizations for lack of advancement and demotions often sound like this: “She’s difficult to work with”, or “We’re restructuring our department under new leadership”, or “She lacks leadership skills and vision”. These comments often prove to be a pretext to discrimination, because no other performance issues exist, and some justification for unfavorable job actions has to be made, whether or not there is veracity in the report. These are the exact remarks Ms. Ames fought against.

Determined, Ames filed a lawsuit in Federal Court claiming that her civil rights had been violated under Title VII of the Civil Rights Act of 1964, which bans discrimination for sexual orientation among other distinctions. Oddly enough, her claim was thrown out at the Circuit level because the court determined that she lacked sufficient “background circumstances” to support her allegations. By “background circumstances” the court sought evidence that “a member of a minority group made the allegedly discriminatory decision or showed a pattern of discrimination against members of a majority group (the majority group in this case being straight people).” They reasoned that since the employment decisions were made by people who were straight and Ms. Ames was straight, that no “pattern” of reverse discrimination existed. 

Undeterred, she pleaded to the nation’s highest court, who had the option to choose whether or not to pursue her case.  Finding this case so compelling, the Supreme Court agreed to hear the arguments, and unanimously agreed that Ms. Ames had a legitimate discrimination claim. In a 9-0 decision, the Court agreed with Ms. Ames, and proceeded to emphasize the steps necessary to support this type of allegation of discrimination. First, according to precedent, “a plaintiff must produce enough evidence to support an inference that the employer intended to discriminate, thus eliminating the requirement for additional “background circumstances”.  In the words of Justice Ketanji Brown Jackson, “A plaintiff may satisfy it simply by presenting evidence ‘that she applied for an available position for which she was qualified, but was rejected under circumstances which give rise to an inference of unlawful discrimination.’” 

Justice Jackson’s opinion admonished the lower court to reconsider their ruling stating that their ruling is “inconsistent with the text of the federal employment discrimination law, which bars discrimination against everyone – without distinguishing between members of a minority group and members of a majority group.” In Justice Jackson’s words, “By establishing the same protections for every ‘individual’—without regard to that individual’s membership in a minority or majority group—Congress left no room for courts to impose special requirements on majority-group plaintiffs alone.  “The ‘background circumstances’ rule [applied by the lower court] flouts that basic principle.” 

Interestingly, Justice Clarence Thomas agreed and wrote, “The ‘background circumstances’ rule is nonsensical for an additional reason: It requires courts to assume that only an ‘unusual employer’ would discriminate against those it perceives to be in the majority.” Challenging the basic assumption of the need for “background circumstances”, he acknowledged that it doesn’t take an “unusual employer” to discriminate against a “majority”, whatever that may be: religion, race, color, or sexual orientation.  

Both conservative and liberal groups supported Ms. Ames in an unusual bipartisan manner. In fact, the Biden Administration submitted an “Amicus  Brief” to the Supreme Court in support of her discrimination claim, specifically questioning the legitimacy of the “background circumstances” consideration. 

Although controversial, this Supreme Court ruling establishes that if enough evidence is present, discrimination can be proven, even when it appears to be “reverse discrimination”. It can be argued that being a straight woman isn’t necessarily the same as being a straight white man or any man, and that being a woman is a protected class, just as righteously as race, color, religion, or sexual orientation. The fact that Ms. Ames was denied a promotion, and then demoted, being replaced by a white man, regardless of sexual orientation is discriminatory in itself.  The Supreme Court was cautious in disregarding this distinction in order to keep the argument consistent with the strictest interpretation of the facts of the case. However, any woman who receives a demotion, pay cut and is passed over in favor of a man, not equally qualified, would have a legitimate argument for discrimination. By interpreting the case as they did, the Court put forth reassurance that sex discrimination cases can go forward and succeed, even when some consider the claim to be “reverse discrimination”.

This decision “overturns precedent… that says someone from a majority group has to meet a higher bar than someone from a minority group for a case to move forward.” – NBC News

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Mary T. O’Sullivan, Master of Science, Organizational Leadership, International Coaching Federation Professional Certified Coach, Society of Human Resource Management, “Senior Certified Professional. Graduate Certificate in Executive and Professional Career Coaching, University of Texas at Dallas.

Member, Beta Gamma Sigma, the International Honor Society.

Advanced Studies in Education from Montclair University, SUNY Oswego and Syracuse University.

Mary is also a certified Six Sigma Specialist, Contract Specialist, IPT Leader and holds a Certificate in Essentials of Human Resource Management from SHRM.