Ames v. Ohio Department of Youth Services

When is discrimination not discrimination? While the Sixth Circuit Court of Appeals would have you think that reverse discrimination is not only legal, but OK. However, discrimination is discrimination, even when it’s used in an attempt to right some past wrong.

The Petition

I wrote about the oral arguments in this case in my article 466 – Heterosexual Discrimination. The question argued before the court was simple, if not straight forward. Did a heterosexual person need more proof of discrimination than a homosexual one?

As refresher, we read from the opinion.

Petitioner Marlean Ames, a heterosexual woman, has worked for the Ohio Department of Youth Services in various roles since 2004. In 2019, the agency interviewed Ames for a new management position but ultimately hired another candidate—a lesbian woman. The agency subsequently demoted Ames from her role as a program administrator and later hired a gay man to fill that role. Ames V. Ohio Dept. Of Youth Services

It appears the management at the Ohio Department of Youth Services had it in for heterosexual women. This led Ms. Ames to file a lawsuit.

Ames then filed this lawsuit against the agency under Title VII, alleging that she was denied the management promotion and demoted because of her sexual orientation. The District Court granted summary judgment to the agency, and the Sixth Circuit affirmed. The courts below analyzed Ames’s claims under McDonnell Douglas Corp. v. Green, … which sets forth the traditional framework for evaluating disparate-treatment claims that rest on circumstantial evidence. At the first step of that framework, the plaintiff must make a prima facie showing that the defendant acted with a discriminatory motive. Like the District Court, the Sixth Circuit held that Ames had failed to meet her prima facie burden because she had not shown “ ‘background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.’ ” 87 F. 4th 822, 825. The court reasoned that Ames, as a straight woman, was required to make this showing “in addition to the usual ones for establishing a prima facie case.”  Ames V. Ohio Dept. Of Youth Services

So both the District and Circuit Courts claimed that even though she showed a prima-facie case, as a straight woman Ms. Ames needed to show more than just discrimination. The court called it the “background circumstances” rule, but the gist of the rule is that discrimination against heterosexuals or other “majority groups” is easier to get away with. Ms. Ames appealed the Circuit Court’s opinion to the Supreme Court.

The Background Circumstances Rule

What is this “background circumstances” rule the Sixth Circuit relied on?

The question in this case is whether, to satisfy that prima facie burden, a plaintiff who is a member of a majority group must also show “‘background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.’” Ames V. Ohio Dept. Of Youth Services

The “rule” states that when a member of a majority group, i.e. not a minority, makes a claim of discrimination, they must show a background of circumstances to support their suspicion. In other words, they must show a history of such discrimination. That sounds like reverse discrimination to me.

SCOTUS Opinion

After hearing oral arguments and doing their internal debates, the court came to the following opinion.

Held: The Sixth Circuit’s “background circumstances” rule—which requires members of a majority group to satisfy a heightened evidentiary standard to prevail on a Title VII claim—cannot be squared with the text of Title VII or the Court’s precedents. Ames V. Ohio Dept. Of Youth Services

According to the court this “background circumstances” rule cannot square with Title VII or the court’s precedent. We find the relevant text of Title VII in 42 USC §2000e02:

(a) Employer practicesIt shall be an unlawful employment practice for an employer-(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; 42 USC §2000e-2: Unlawful employment practices

While this law is well beyond the constitutional powers vested in the United States, it is the law that the court was evaluating, since it was the basis for Ms. Ames complaint. The court claims that the Sixth Circuit’s decision does not square with the text of Title VII, so they remanded it back to them for further review.

The Sixth Circuit has implemented a rule that requires certain Title VII plaintiffs—those who are members of majority groups—to satisfy a heightened evidentiary standard in order to carry their burden under the first step of the McDonnell Douglas framework. We conclude that Title VII does not impose such a heightened standard on majority-group plaintiffs. Therefore, the judgment below is vacated, and the case is remanded for application of the proper prima facie standard.It is so ordered. Ames V. Ohio Dept. Of Youth Services

While I believe the court came to the correct decision, they did miss a couple of things along the way.

Justice Thomas Concurrence

Justice Thomas wrote a concurring opinion, to which Justice Gorsuch joined. In this opinion, Justice Thomas pointed out two serious problems missed by the court.

JUSTICE THOMAS, with whom JUSTICE GORSUCH joins, concurring.I join the Court’s opinion in full. I write separately to highlight the problems that arise when judges create atextual legal rules and frameworks. Judge-made doctrines have a tendency to distort the underlying statutory text, impose unnecessary burdens on litigants, and cause confusion for courts. The “background circumstances” rule—correctly rejected by the Court today—is one example of this phenomenon. Ames V. Ohio Dept. Of Youth Services

Justice Thomas found the first problem right off the bat. When judges make “doctrine” they tend to distort the actual law. These “doctrines” have the nasty habit of being treated as if they were law, which is the other problem Justice Thomas found.

(“[W]hile interpreting and applying substantive law is the essence of the ‘judicial Power’ created under Article III of the Constitution, that power does not encompass the making of substantive law”) Ames V. Ohio Dept. Of Youth Services

As I so often say, courts do not make law. In fact, they are prohibited from making law, because the Constitution vests that power solely with Congress.

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives. U.S. Constitution, Article I, Section 1

I just wish Thomas and the rest of the justices would recognize that fact. In fact, I wrote an entire section on the topic of Judicial Hubris in another article. One example from that case is:

JUSTICE SOTOMAYOR: No, we don’t, because the argument here is that the president is violating an established — not just one but, by my count, four established Supreme Court precedents. Universal Injunctions – Judicial Hubris

Except court precedents are not law, so they cannot be violated. Similarly, the Sixth Circuit’s “background circumstances” rule is another example of a judge-made rule distorting the law by elevating judges above it.

Conclusion

Unanimous decisions by the Supreme Court are important for a couple of reason. First, it means the issue should have been rather obvious. After all, if there was a real question about the case, wouldn’t you expect at least one justice to dissent? Second, although it really shouldn’t matter, the unanimity is often used to give greater weight to these decisions, meaning lower court justices are less likely to ignore them.

Looking at the facts of the case, it does seem rather obvious that when the law says it’s unlawful for employers to discriminate based on sex, it really doesn’t matter which way the discrimination flows. The fact that Ms. Ames had to wait so long, not to mention the costs both monetary and emotional of these multiple court decisions, shows a serious problem with our so-called “justice system.” As the saying goes: “Justice delayed is justice denied,” and Ms Ames has been denied justice for more than five years, and her wait isn’t over. You see, the court didn’t award the case to Ms. Ames, but only that her petition that the Sixth Circuit’s “background circumstances” doctrine violated federal law. The court then sent the case back to the Sixth Circuit to try again.

I do need to point out one thing about this before we finish this article. Title VII, 42 USC §2000e-2, is blatantly unconstitutional. Nowhere in the Constitution of the United States will you find the power to regulate employment delegated to it. That means that not only does Title VII violate the Constitution, it is also void, because only Congress has the power:

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof. U.S. Constitution, Article I, Section 8, Clause 17

While I applaud the anti-discrimination sentiment behind Title VII, that does not make 42 USC §2000e-2 legal.