SCOTUS Ruling Sounds Death Knell For ‘Reverse Discrimination’
“This is critically important because we all know that so-called reverse discrimination, so-called reverse racism, takes place in employment almost everywhere, but it’s usually overlooked.”
The Equal Protection Project filed an Amicus Brief in the Ames v. Ohio case in the Supreme Court, involving whether a heterosexual woman had an extra burden of proof in claiming sex disrimination because she was a ‘majority’ plaintiff. Marlean Ames alleged she was discriminated twice due to discrimination at the Ohio state agency where she worked in favor of gay co-workers.
After the oral argument, Jim Nault and I wrote an op-ed at The New York Post predicting a 9-0 ruling in favor of Ames:
Marlean Ames alleged that she suffered employment discrimination as a heterosexual in an Ohio state agency that favored LGBTQ employees.
DEI-infused bureaucracies often consider such policies an acceptable part of their “social justice” agenda.
Federal employment law as written, however, protects everyone equally.
The legal issue before SCOTUS was whether, as a member of the majority heterosexual group, Ames had an extra burden of proof in her discrimination claim that an LGBTQ person would not have to meet….
While it’s risky to predict outcomes, it appeared that all nine Supreme Court justices, liberals and conservatives alike, agreed that Ames had gotten a raw deal in the lower courts — because reverse discrimination really is unlawful discrimination, full stop.
“We’re in radical agreement today on that, it seems to me,” Justice Neil Gorsuch commented, drawing laughter in the courtroom.
And sure enough, our prediction came true, as the Supreme Court in an opinion by Justice Jackson ruled 9-0 in favor of Ames.
The Post contacted me and asked if I could to a 2-minute video hot take on the case. Here it is:
(Transcript auto-generated, may contain transcription errors, lightly edited for transcript clarity)
The Supreme Court just issued a massive ruling, which is not receiving enough media attention, which basically is the death knell for what’s called reverse discrimination or reverse racism.
It involved a woman in Ohio who worked for Ohio government and she alleged that she faced discrimination at work because she was heterosexual. The district court, threw out her case, the court of appeals threw out her case saying, because you are a member of the majority, heterosexuals are the majority in the country, so-called straight people, that you have an extra burden of proof to show.
The Supreme Court looked at that and said, no, she doesn’t. The statute at issue prohibits discrimination in employment on the basis of sex, race, et cetera. It doesn’t say that a majority plaintiff has to prove additional factors.
This is critically important because we all know that so-called reverse discrimination, so-called reverse racism, takes place in employment almost everywhere, but it’s usually overlooked. It’s usually dismissed as part of the social justice movement and as something that’s necessary to do.
The Supreme Court has sent a very important message and that message is that discrimination is discrimination, and it doesn’t matter who it’s against. If it’s on the basis of any protected factor, be it race, sex or anything else, everybody is treated equally.
This will open up the courthouse doors to people who claim that they are a majority plaintiff. They’re either white or they’re straight or they’re male in some occupations, and they are being discriminated against. No longer will they have to push their way into the courthouse. It will be just as open as for anybody else.
So this is massive. It’s going to lead to more lawsuits from people claiming discrimination. It’s going to make lawyers much more willing to take the cases.
So this is a game changer.
Ames is not done. She didn’t “win” on the merits. She still has to litigate in the District Court. But at least she’ll have a level playing field.
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Comments
They’ll try and find a way around it, just like DEI became something else when inconvenient. If they can’t explain and hire the minimally qualified, they’d be screwed by merit
Employers will continue to discriminate in both directions, just as they always have. But people who think they’ve been discriminated against will sue, and now they’ll win in equal numbers in both directions.
The thing is that this isn’t something that people thought was legal and now they’re told it’s not. It’s always been illegal, and no one has ever claimed it was legal, but people were doing it anyway and barely bothering to pretend not to, and they were getting away with it. What’s changed is now they can no longer get away with it, without some serious work to hide what they’re doing.
FWIW
There is lots of discrimination in hiring.
As a cpa I am an employer along with having numerous clients with emplpoyment needs, and therefore see a lot of discrimination based on business factors that may have the apparence of race.
The employer seldom hires the most qualified, but hires the person who is going to make the company the most sucessful.
In the construction industy, hispanic personell is the most highly preferred employee
In the sewing industry, vietnamese is the most highly preferred employee.
Smaller companies with small workforces have to more careful not to hire a person that doesnt fit. , thus there is higher likelihood to “discrimination” to reduce risk of race friction.
My comment may have been poorly written, but the jest is that the employer’s workforce needs to mesh to be successful and thus creates discrimination to reduce the employee friction
Hiring the person that is going to make the company the most successful is not discrimination in my opinion. It is common sense.
Of course there is discrimination in hiring because almost everything involving people is subjective. Most of the job I got both professionally or otherwise was because of personal contacts. I happy to be pretty competent in my opinion but no matter how good you are there is always someone better, The goal at the end of the day is to make the company successful,
It should, but it won’t. The progressives, especially the district court judges will ignore it. They force people to litigate and in the case of the judges appeal their rulings? Why? Because there is no penalty whatsoever as far as I can tell for someone discriminating. There might be an institutional penalty but there won’t be a personal one.
There is definitely a penalty. If Ames wins her case, which she is now likely to, the defendant will pay big damages. In fact I assume they will now rush to settle the case, since they no longer have a leg to stand on.
What is the penalty for the actual person who engages in discrimination. I can see the organization paying but what about the individual. My guess is there is none.
How do you think a company that has to pay out large amounts of damages because of one person’s illegal actions is likely to treat that person?
Depends who that person is frankly, What about when it is government doing the discrimination? A lot of government positions are protected against personal lawsuits so the losers are the tax payers not the discriminator,
It all comes back to money. Someone who committed so blatant an act of discrimination that a company had to buy their way out of it will pay a price. If there are multiple acts that price goes up. If, for no other reason, having someone that dumb and reflexive in a position of authority is usually expensive.
The defendant will be assessed big damages.
Ask the people who’ve been awarded money in court against Michael Mann how well that works.
Let’s hope she doesn’t get a district court judge who has decided they are the sole arbiter of law in this country and ignores the SCOTUS ruling.
They can’t. This isn’t something that can be ignored. The judge has to explain the standard of proof to the jury. Either she instructs them on this extra burden of proof, or she doesn’t; and now she can’t.
It should — but lower-court judges seem to think SCOTUS isn’t the boss of them.
That isn’t true. Even when they disobey, they pretend they are obeying, because they acknowledge that they have to.
Speaking of pretending, Outhouse. 🤔
We are all seeing the same thing.
The playing field may be level, but the refs are not.
The lower courts, plus local, state, and federal agencies, seem to be completely free to ignore the SJC on this point. Just look at what Griggs decreed — in 1971. Try to explain how Griggs was not ignored by Ohio.
https://tile.loc.gov/storage-services/service/ll/usrep/usrep401/usrep401424/usrep401424.pdf
_** In short, the Act does not command that any person be hired simply because he was formerly the subject of discrimination, or because he is a member of a minority group. Discriminatory preference for any group, minority or majority, is precisely and only what Congress has proscribed. What is required by Congress is the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification
Congress has not commanded that the less qualified be preferred over the better qualified simply because of minority origins. Far from disparaging job qualifications as such, Congress has made such qualifications the controlling factor, so that race, religion, nationality, and sex become irrelevant. **_
Ohio claims, of course, that it has been following Griggs. So have the courts. Everyone has agreed that discrimination against “majorities” is just as bad as against “minorities”. The only question resolved here was about how to prove a breach of the law.
wrong!!
the left has us SPEAKING THEIR LANGUAGE
DEI IS AFFIRMATIVE ACTION
so stop playing these dangerous games that the left controls
speech is a defining characteristic of the culture
slang is fine…as slang
NOT THE NORM
in a civilized country