The Supreme Court is in “radical agreement” that a bizarre DEI rule needs to go

The proper term for a Supreme Court session where the justices hear verbal presentations by lawyers is an “oral argument,” but Wednesday’s hearing in Ames v. Ohio Department of Youth Services hardly qualified as an argument. Everyone, on every side of the case, agreed that a strange rule governing employment discrimination suits in some parts of the country needs to go.

As Justice Neil Gorsuch quipped at one point, there appears to be “radical agreement.”

Ames involves a rule that exists in some federal appeals courts that requires employment discrimination plaintiffs who are in the “majority” to carry a slightly higher evidentiary burden than plaintiffs who are part of a minority group. This particular case involves a straight woman who was denied a promotion and later demoted. In both cases, the position she wanted was filled by a gay employee.

In most federal courts, plaintiffs who are in the majority are treated no differently than plaintiffs who are in the minority. That’s consistent with the Supreme Court’s unanimous decision in McDonald v. Santa Fe Trail Transportation Co. (1976), which held that federal law “prohibits racial discrimination against” white people “upon the same standards as would be applicable” if they were Black.

But a handful of federal courts, including the United States Court of Appeals for the Sixth Circuit, which heard Ames, apply a different rule to plaintiffs in the majority. Under this rule, members of the majority must show “background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority” at a very early stage in their lawsuit.

Pretty much no one, including Ohio Solicitor General T. Elliot Gaiser, who was nominally in the Supreme Court Wednesday morning to defend the Sixth Circuit’s decision, supports this “background circumstances” rule. Gaiser began his presentation with a declaration that “Ohio agrees it is wrong to hold some litigants to a higher standard” because of their identity. Under questioning from Justice Amy Coney Barrett, Gaiser agreed that Marlean Ames, the plaintiff in this case, “should have the same burden” as a gay plaintiff who made a similar allegation of discrimination.

So there’s really not much doubt about how this case is going to turn out — nor, realistically should there be. Both federal law and decisions like McDonald are clear that employment discrimination cases brought by majority plaintiffs should proceed on the same terms as any other employment discrimination case.

To the extent that there was disagreement among the justices, it largely focused on what Justice Elena Kagan described as a “range of things that have nothing to do with” the question presented by the Ames case. Some justices, for example, showed some interest in using this case to tweak the rules established by McDonnell Douglas v. Green (1973), a seminal case that laid out the procedures that apply in many employment discrimination cases.

By the end of the oral argument, however, there appeared to be little appetite for a broad opinion. Justice Brett Kavanaugh floated the possibility of a very short opinion that simply states that the “rules are the same” regardless of whether a particular plaintiff is in the majority or the minority. Even Justice Neil Gorsuch, who is often one of the justices most eager to remake longstanding law, seemed to endorse this proposal.

He suggested that the Court hand down a narrow opinion tossing out the “background circumstances” rule, then send the case back down to the Sixth Circuit to consider any other questions about how employment discrimination suits should work.

It appears likely, in other words, that Ames will be a fairly minor opinion that reaffirms what the Court said in McDonald, and which does very little to change how discrimination lawsuits work in America. In a Court dominated by Republicans, and in an era when many Republicans take a slash-and-burn approach to DEI, that’s probably the best outcome that advocates of greater workplace diversity could hope for.