Chloe Miracle-Rutledge is a JURIST Supreme Court Correspondent and a 2L at Georgetown University Law Center in Washington, DC.
On Wednesday morning, I walked up to an unusually quiet Supreme Court building to attend oral arguments for Ames v. Department of Ohio Youth Services, a case in which the Court has been asked to clarify the requirements for majority-group plaintiffs bringing employment discrimination claims.
Only one cameraman was outside the Court, surrounded by large groups of children on a school field trip. The press room was similarly empty, with only five other reporters lining up to enter. I held my breath, hoping the sparse press turnout would translate to a seat with good visibility of all the Justices.
After going through security and getting my press card stamped, I was led through the brass-flowered gates, into the press section, and directed to the front row. After three months of reporting on the Supreme Court I finally, finally, got to see the Justices during oral arguments. Justice Sonia Sotomayor’s thick black glasses, the gingham checked shirt peeking out under the sleeve of Justice Ketanji Brown Jackson’s robes, Justice Samuel Alito rocking front to back in the tall black leather chair — all of it was within my view.
The morning began with the announcement of two opinions (Waetzig v. Halliburton Energy Services, Inc. and Dewberry Group, Inc. v. Dewberry Engineers Inc.) and the admission of new attorneys to the Supreme Court bar. During these announcements, Justice Amy Coney Barrett, seated closest to the press section, made direct eye contact with me. I smiled politely, trying to telepathically assess how she would vote on the gender-affirming care case I covered in December.
Then, an unusual round of oral arguments began. Petitioner Marlean Ames, the Ohio woman whose “reverse discrimination” lawsuit against her employer failed because the Sixth Circuit held she could not meet the “background circumstances” test, argued that the background circumstances rule should not apply, as it is inconsistent with Title VII, the overarching employment law, and with Supreme Court precedent. Strangely, and in a departure from the Sixth Circuit’s reasoning, the Ohio Department of Youth Services (The Department), Ames’s former employer and Respondent in this case, seemed to agree that this additional rule should not apply. But the Department added that Ames could not meet the evidence requirements of an employment discrimination case regardless.
Attorney Xiao Wang, representing Ames, began oral arguments by outlining the “adverse employment actions” Ames claims she was subjected to and argued that the “judge-made” background circumstances rule which halted Ames’s lawsuit in the Sixth Circuit is inconsistent with federal employment law. Laws like Title VII seek to “eradicate all discrimination in the workplace,” but Wang argued the background circumstances rule reinforces discrimination. Wang urged the Court to reverse the Sixth Circuit’s decision.
The Justices began by presenting broad questions and hypotheticals about the steps of employment discrimination claims, with Justice Neil Gorsuch recognizing he was asking an “unfair question” and Justice Brett Kavanaugh stating they were getting “pretty far afield” from the question presented. The Justices were curious about various scenarios in which majority-group plaintiffs could make a “prima facie” showing and about clarifying the steps of employment discrimination claims.
Prima facie, meaning “at first sight,” represents the first step of an employment discrimination claim where the plaintiff must show that their claim has sufficient evidence, at first glance. After this step, the burden shifts to the employer to provide evidence that demonstrates a nondiscriminatory reason for their action. The Justices seemed to be testing the scope of Wang’s argument and seeing whether he was arguing that majority-group plaintiffs could always make a prima facie showing and win their lawsuits.
In response, Wang continually emphasized the narrowness of the question at hand and of his argument. Yes, plaintiffs could make prima face cases in a variety of situations, but that does not mean that they will win their case–it simply “bring[s] the employer to the table” for the second step of demonstrating a non-discriminatory reason. But the narrow question here, Wang remind the Justices, was “whether there’s an additional burden specifically on majority-group plaintiffs.”
Justice Barrett asked Wang about the Department’s concerns that reversing the Sixth Circuit’s decision would “throw the door wide open to Title VII suits” because it would allow for unlimited discrimination claims. Wang refuted the Department’s “floodgate” concerns, saying that there are evidentiary burdens to pass before even reaching litigation that would prevent excessive lawsuits and that the circuits that currently do not apply the background circumstances rule do not see a flood of litigation.
Wang’s argument time was shared with Ashley Robertson, an assistant to the US Solicitor General who argued as a “friend of the court.” Robertson, urging the Court to vacate the Sixth Circuit’s decision, shared many of Wang’s concerns with the background circumstances rule. Robertson emphasized that the background circumstances rule requires more evidence to make a prima facie case than is constitutionally necessary and that its application could end up throwing out discrimination cases that have merit. Based on questions from Chief Justice John Roberts, Robertson clarified that demonstrating that an employer belongs to a minority group is not, alone, enough to make a prima facie showing. After a question from Justice Alito, Robertson further explained that considerations similar to the background circumstances rule can come up later in the employment discrimination framework.
Then, the Department took their turn before the Justices, with Elliot Gaiser, the Solicitor General of Ohio, asking the Justices to agree with the Sixth Circuit ruling. Gaiser maintained that “Ohio agrees it is wrong to hold some litigants to a higher standard” but that the Sixth Circuit did not do that to Ames. Rather, she failed to make a proper prima facie case, regardless of the standard Ames was held to.
This is confusing because, as Justice Elena Kagan emphasized, the Sixth Circuit decision, which the Department wants the Court to uphold, said that Ames’s prima facie was “easy to make” except for the fact that she could not meet the background circumstances rule. Justice Clarence Thomas also pushed back on Gaiser’s contentions, asking whether the Sixth Circuit opinion, which states that the additional burden would not have been necessary if Ames had been a minority, was consistent with the Department’s argument.
Gaiser continued to argue that the “best way to construe the language” of the Sixth Circuit’s opinion was consistent with his and the Department’s arguments and maintained that Ames had not met the proper evidence standards to make a prima facie case. Justice Jackson expressed concern with this, saying Gaiser seemed to think more evidence was required in the prima facie stage than is necessary. Justice Sotomayor expressed similar confusion, saying Gaiser was putting employment discrimination law “on its head” by suggesting you have to present enough evidence to win a case at the prima facie step.
Gaiser then seemed to concede to the Petitioner and Solicitor General’s arguments, stating that the Department agreed that holding people to a different standard because of their protected characteristics is “wrong.” But Gaiser appeared to be steering the Justices toward larger questions about the multi-step framework for employment discrimination claims. Justice Kagan resisted this direction, emphasizing that Gaiser agreed with the other side on the question presented and asking why the Court would use this case “to opine on a range of things that have nothing to do with that question?”
Justice Gorsuch, remarking that Gaiser was demonstrating “radical agreement,” asked Gaiser what would be wrong if the Court ruled that everyone is treated equally at the first step of an employment discrimination case and then remanding back to the Sixth Circuit.
Gaiser’s responses did not seem to satisfy the Court, which appeared unimpressed with the Department’s attempt to shift the question presented and sympathetic to Wang and Robertson’s arguments about the problematic burden the background circumstances rule applies at the first step of an employment discrimination case.
A decision is expected by summer. The Court will likely side with Ames, but their decision could be broad or narrow. A narrow decision would apply only to Ames’s case and find a specific reason why the Sixth Circuit got it wrong in this case, but a broader decision would get rid of the background circumstances rule in all cases.
