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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