A Straight White Woman Should Win 'Reverse Discrimination' Case: But That's Not the Worst Outcome

In Ames v. Ohio Department of Youth Services, there are darker anti-DEI forces in play that make a narrow Supreme Court ruling more appealing.

Photo by Fine Photographics on Unsplash

If white fragility could bring a Supreme Court case, it would look a lot like Ames v. Ohio Department of Youth Services, which was argued in front of the highest court last week. The plaintiff in the case, Marlean Ames, is a heterosexual white woman, and she argues that she was passed over for a promotion that was given to a gay person, and eventually demoted because she is straight. Ames claims this is a case of “reverse discrimination.”

Reverse discrimination is one of those terms that involves white people telling on themselves. People who say “reverse” discrimination are telling us that “discrimination” is what white people do all the time, and they only really have a problem with it when they find themselves on the short end of that stick. There is no such thing as reverse discrimination, there is only discrimination and white folks will generally tolerate it until it happens to them.

Towards that end, Ames brought a normal workplace discrimination case, under the Civil Rights Act, as she and any other straight white person is allowed to do. But her evidence was thin. She had applied to be a bureau chief at the Ohio Department of Youth Services, and her evidence of discrimination is that they didn’t hire her, but instead hired somebody else who happened to be gay. Later, she claims that the assistant director of the department (who is also straight) met with her, removed her from her job as a program director and invited her to reapply for a different job that paid half as well. Her case was dismissed by a federal court.

Ohio, however, is one of the few states that still operates under a rather archaic judicial rule regarding civil rights complaints. The rule requires members of “the majority” (white people generally, or straight people, in this case) to meet a “heightened standard” of proof to sustain discrimination cases. Cishet white people like Ames have to show that there are “background circumstances” at their place of business that suggest a pattern or history of discriminatory conduct against people in the majority.

This rule makes sense if you think about it for two seconds and are generally aware of this country’s history of discriminatory practices. If I’m a Black person suing for racial discrimination, I shouldn’t really have to prove that this country and most of its employers are and have always been racist. That’s just a waste of everybody’s time. Instead, we can skip the remedial American history of whiteness class and get straight to my evidence of how my employer discriminated against me specifically. But white folks (or straight white folks) have not historically been discriminated against in this country. It makes sense to ask them to provide some evidence that their employer has an ax to grind against cishet white people and show they have a claim based on more than the white assumption that they are entitled to every job and every position everywhere at all times.

Unfortunately, this entire country now runs on white feelings of entitlement and outrage, and the law is not immune. The rule, while it makes common sense, feels unfair to white folks, and we know that anything that hurts white people’s feelings in this country cannot long survive. It’s the definition of a double standard: people in the minority have one standard of proof, people in the majority have another. Again, most white people are totally fine with double standards, as long as the burden falls on Black folks or LGBTQ folks, but when double standards make things more difficult for them, white folks lose their minds. As the saying goes, I have yet to meet a white person who could exist as a Black person for six months without being outraged to the point of distraction.

During oral arguments in front of the Supreme Court, Justice Neil Gorsuch said there was “radical agreement” that the heightened standard, background circumstances rule had to go. Even the Ohio solicitor general, who was supposed to be defending the Ohio Department of Youth Services, wasn’t really defending the rule. As I said, other federal circuits, covering most of the other states, have already abandoned this rule. In most of the country, white people can sue for discrimination under the same standards as anybody else. The six Republicans on the Supreme Court sounded eager to bring the Court of Appeals for the Sixth Circuit (which covers Ohio) in line.

What might be surprising to some is that the liberals on the court did not push back too much. When we eventually get a Supreme Court decision in this case, it could easily be unanimous, 9-0, with all the justices voting to get rid of the rule and thereby make it easier for white folks to sue for discrimination any time a Black person gets a job ahead of them and make it easier for straight people to sue for discrimination any time an LGBTQ person is hired.

Why would the liberals join such an opinion? Well, because there is something more sinister lurking just underneath the arguments in Ames, and that sinister something is named Stephen Miller. Remember, Ames had nearly no evidence that she was actually discriminated against, beyond the mere fact that an LGBTQ person was hired for a job she wanted. It’s like me arguing that I was “discriminated against” because they asked Billy Porter to host the Tonys instead of me. Ames couldn’t meet the basic standard of a discrimination claim, and her case would have been bounced in any state, even ones that didn’t have the “background circumstances” rule.

But Stephen Miller’s “America First” legal team has been pushing the argument that any employer or organization that practices “DEI” is de-facto discriminating against white people. In Miller’s world, white people would never have to prove discrimination against them, they’d just have to point to a DEI program and then automatically win their lawsuit. In Miller’s world, any organization or institution that hired any Black person or gay person for any reason could be sued by the straight white person who didn’t get the job. Miller’s team wasn’t merely asking the court to abandon the rule requiring white folks to produce more evidence, they were asking the court to create a new rule, one that doesn’t require white folks to present any evidence of individualized discrimination at all.

In Ames, even the Republican justices did not seem to have much appetite for that radical argument. But the argument that admitting Black people is facially discriminatory against mediocre white people who didn’t get in was essentially the argument that won the day in Students for Fair Admissions v. Harvard, the case that ended affirmative action, so we know the conservatives are at least thinking about it.

Supreme Court justices often vote strategically. In Ames, it’s entirely possible and rational that some (and maybe all) of the liberals would join the conservatives in getting rid of the heightened standard rule — a rule that has already been abandoned in many states — to keep the more aggressively anti-DEI claptrap out of the final ruling. That’s the smart play, and it’s probably what I would do if I was on the court.

Even if Marlean Ames wins her Supreme Court case, she should still lose her “reverse racism” case when she goes to trial. She likely can’t prove, under any standard, that she was discriminated against because she is a straight white woman, just because other straight white people hired a gay person for a job she wanted.

But the white supremacists who run the country are doing everything they can to change that. For them, racism is fine, so long as it protects white folks. Their goal is to make it legally dangerous for any employer to hire any bBlack person for any position, and they are very close to achieving that white’s-only future. It probably won’t happen for them in this case, but it could in the next one, or the one after that. If we continue to allow these people to have unchallenged control over the White House, the Congress, and the Supreme Court, they will achieve total victory soon.

---

Elie Mystal is The Nation’s justice correspondent and the host of its legal podcast, Contempt of Court. He is also an Alfred Knobler Fellow at the Type Media Center. His first book is the New York Times bestseller Allow Me to Retort: A Black Guy’s Guide to the Constitution, published by The New Press.