The Supreme Court has agreed to hear a case of an Ohio woman who says she faced workplace discrimination over her heterosexual identity. The case may be the first of its kind. It examines the lengths members of “majority groups” must go to prove that they were discriminated against by “minority” groups.
Marlean Ames worked for 20 years at the Ohio Department of Youth Services, a state agency that oversees the confinement and rehabilitation of juvenile felony offenders. In 2014, she was promoted to serve as the administrator of the Prison Rape Elimination Act (PREA), a 2003 federal law that seeks to track and end sexual assaults in all detainment facilities.
Related:
In 2017, a gay woman named Ginine Trim became Ames’ new supervisor. In December 2018, Trim gave Ames a performance evaluation that said Ames mostly “met” all of her job expectations and had an “opportunity to improve” in three areas. Then, in April 2019, Ames applied and interviewed to become the Department’s Bureau Chief of Quality — she didn’t get the job.
Stay connected to your community
Connect with the issues and events that impact your community at home and beyond by subscribing to our newsletter.
One month later, the agency’s Human Resources department called Ames into a meeting where they terminated her role as PREA administrator and demoted her to her former role, reducing her pay from $47.22 an hour to $28.40 an hour, court documents allege.
The agency’s director and assistant director who oversaw Ames’ demotion are both heterosexual, and at different times, they provided different reasons for her demotion. Once, they mentioned that her position was an “at-will” role whose work could be terminated at any time; another time, they said that they wanted a worker who would regularly exceed (rather than just “meet”) the job’s expectations.
The following December, the department hired Alexander Stojsavljevic, a 25-year-old gay man, for the PREA administrator position and chose Yolanda Frierson, a gay woman, as its Bureau Chief of Quality. Ames filed a discrimination charge with the Equal Employment Opportunity Commission (EEOC) and then filed a lawsuit. Both a district court and the 6th U.S. Court of Appeals ruled against Ames.
Ames claimed that she had faced discrimination based on her sexual orientation, something banned by Title VII after the Supreme Court’s 2020 Bostock v. Clayton County decision. The decision ruled that workplace discrimination against sexual orientation and gender identity are forms of sex-based discrimination.
However, in its summary judgment, the district court said Ames had failed to prove that she was a member of a “protected class” of people who have historically been discriminated against for their personal characteristics. The court also said Ames failed to substantiate “background circumstances” proving that LGBTQ+ people had made the decisions against her or that they had discriminated against other heterosexual workers before in the past.
Ames herself acknowledged that the agency’s heterosexual director and assistant director made the decision to hire the gay man who took the Bureau Chief of Quality position.
The larger question at issue — according to Raymond Kethledge, a district court judge who disagreed with the legal reasoning in his colleagues’ decision — is whether it’s fair for Ames to have to prove “background circumstances to support the suspicion that the [department was] that unusual employer who discriminates against the majority.”
“Twice in one year, the Department promoted an arguably less-qualified gay employee in a manner adverse to Ames; and in promoting one of those employees, Yolanda Frierson, the Department circumvented its own internal procedures because Frierson lacked the minimum qualifications for the job,” Kethledge wrote.
Kethledge argued that if Ames had been treated similarly for her race, the court would’ve considered that enough to substantiate her discrimination claim.
“Our court and some others have construed this same [‘background circumstances’] provision to impose different burdens on different plaintiffs based on their membership in different demographic groups,” Kethledge wrote. “Nearly every circuit [court] has addressed this issue one way or another. Perhaps the Supreme Court will soon do so as well.”
Subscribe to the LGBTQ Nation newsletter and be the first to know about the latest headlines shaping LGBTQ+ communities worldwide.
