Discriminated against for being heterosexual? The war on diversity returns to the US Supreme Court

Amid an offensive against diversity and inclusion policies, the U.S Supreme Court is examining a case that fits like a glove for its conservative revolution. The judges issued a ruling in 2023 against affirmative action based on race in university access that opened the way to lawsuits of all kinds against educational institutions, companies, and other organizations. The case that began Wednesday in an oral hearing represents a further twist: a woman claims that she was discriminated against for being heterosexual, in favor of two homosexuals.

The Supreme Court must decide whether it should be harder for workers from majority groups, such as whites or heterosexuals, to prove workplace discrimination claims. The justices will consider a challenge by Marlean Ames, a 60-year-old heterosexual woman seeking to revive her lawsuit against the Ohio Department of Youth Services.

In that suit, she claimed she lost her job to a gay man and was passed over for a promotion in favor of a gay woman, in violation of federal civil rights laws. She says they were less qualified than her, but her supervisor was also gay and made a point of choosing them. “That’s how I came to feel that I was being discriminated on because I was straight and pushed aside for them,” Ames told Reuters last week.

Until now, courts have required plaintiffs who belong to a majority group to show “background circumstances supporting a suspicion that the defendant is that unusual employer who discriminates against the majority,” as lower courts have ruled in several cases, including that of Ames. Those courts have said the higher bar is justified because discrimination against such workers is relatively rare.

Ames, however, believes that having a higher burden of proof goes against the principle of equality. “Discrimination is discrimination,” she told Reuters. “This will hopefully be able to help anyone who feels they’ve been discriminated on to get a fair shake in the courtroom and not have to go to the lengths that I had to go to.”

In her brief to the Supreme Court, Ames argued that requiring her to show “background circumstances” conflicts with the language of the Civil Rights Act, which simply prohibits discrimination “against any individual with respect to the terms and conditions of employment because of that individual’s sex” or other protected characteristic. “The law as applied requires something more of her than the law as written,” she complained. Moreover, Ames added, that additional hurdle applies only to a “subset of plaintiffs” — namely, those who are members of a majority group.

Several civil rights groups, meanwhile, argued in writing to the Supreme Court that Ames is asking judges to interpret the law “in a manner that ignores the realities of this country’s persistent legacy of discrimination when evaluating claims of disparate treatment.”

The Supreme Court has a majority of six conservative justices against three progressives. In its ruling on affirmative action in college admissions, the court split along these ideological lines. The justices must now weigh whether the burden of proof should be the same in cases of discrimination against minorities and majorities. Ultimately, equalizing the requirements may make it more difficult for members of minorities to prove that they are victims of discrimination.

Conservative offensive

The Ames case comes to the Supreme Court amid a conservative offensive against the principles of diversity, equality, and inclusion. It fits perfectly into their narrative that these principles end up translating into discrimination against majority groups.

Donald Trump has issued executive orders banning the implementation of inclusive policies in his administration. He has also threatened to terminate public contracts and sue companies that implement these principles.

In one executive order, signed on January 20, the day of his inauguration, the president ordered the “termination of all discriminatory programs, including illegal DEI and ‘diversity, equity, inclusion, and accessibility’ (DEIA) mandates, policies, programs, preferences, and activities in the Federal Government, under whatever name they appear.”

A second order, issued on January 21, required companies and other contractors to certify that they did not have discriminatory diversity policies and asked each federal agency to identify up to nine targets for potential investigations into their DEI policies among public companies, nonprofits, foundations, associations, and universities.

A federal judge has temporarily suspended the enforcement of some provisions of the decrees. Still, activist and regulatory pressure has led many companies to abandon their policies rather than risk lawsuits or losing contracts.

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