The “heightened burden” rule made up the Federal courts is “atextual”
The Supreme Court has made clear the obvious: that all plaintiffs making similar claims for discrimination must meet the same burden of proof. While this may seem obvious to anyone who knows the guarantees of liberty and equality found in our Constitution, Federal courts have held that certain plaintiffs, such as white people or straight women, are disfavored and must meet an almost impossible standard so as to, of course, discourage their pesky claims. It has taken a unanimous United States Supreme Court via a well-written opinion by the Hon. Ketanji Brown Jackson to disabuse these courts of this notion. (Ames v. Dept. of Youth Services (June 5, 2025) 23-1039.). This means that even Justices Sotomayor and Kagan voted to treat all Americans equally in terms of their claims of discrimination — even if they are straight and/or white.
The Supreme Court summarized the underlying claim of discrimination succinctly:
The Ohio Department of Youth Services operates the State’s juvenile correctional system. In 2004, the agency hired petitioner Marlean Ames, a heterosexual woman, to serve as an executive secretary. Ames was eventually promoted to program administrator and, in 2019, applied for a newly created management position in the agency’s Office of Quality and Improvement. Although the agency interviewed her for the position, it ultimately hired a different candidate—a lesbian woman—to fill the role.
A few days after Ames interviewed for the management position, her supervisors removed her from her role as program administrator. She accepted a demotion to the secretarial role she had held when she first joined the agency— a move that resulted in a significant pay cut. The agency then hired a gay man to fill the vacant program-administrator position. Ames subsequently filed this lawsuit against the agency under Title VII, alleging that she was denied the management promotion and demoted because of her sexual orientation.
The District Court found this poor woman had to meet a very high burden, a heightened burden designed to stack the deck against her, and granted the department summary judgment. Somehow, the Sixth District, and other districts had either created or perpetuated this heightened burden, as the Ames opinion explained:
The Sixth Circuit affirmed. Like the District Court, the Sixth Circuit held that Ames had failed to meet her primafacie burden because she had not shown “‘background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.’” 87 F. 4th, at 825. The court reasoned that Ames, as a straight woman, was required to make this showing “in addition to the usual ones for establishing a prima-facie case.” Ibid. And it explained that plaintiffs can typically satisfy this burden, where applicable, by presenting “evidence that a member of the relevant minority group (here, gay people) made the employment decision at issue, or with statistical evidence showing a pattern of discrimination . . . against members of the majority group.” Ibid. The panel concluded that the agency was entitled to summary judgment because Ames had failed to present either type of evidence. Ibid.
But, as Justice Brown explained, each individual American who is a plaintiff must - wait for it — be treated “equally:”
By establishing the same protections for every “individual”— without regard to that individual’s membership in a minority or majority group — Congress left no room for courts to impose special requirements on majority-group plaintiffs alone.
. . .
Our case law thus makes clear that the standard for proving disparate treatment under Title VII does not vary based on whether or not the plaintiff is a member of a majority group. Accord, Bostock, 590 U. S., at 659 (“This statute works to protect individuals of both sexes from discrimination, and does so equally”). The “background circum stances” rule flouts that basic principle.
The concurrence of Justice Clarence B. Thomas noted that the heightened evidence rule had been entirely made up, i.e., was “atextual,” having been created by the Courts and was not found in the language used by Congress:
I join the Court’s opinion in full. I write separately to highlight the problems that arise when judges create atextual legal rules and frameworks. Judge-made doctrines have a tendency to distort the underlying statutory text, impose unnecessary burdens on litigants, and cause confusion for courts. The “background circumstances” rule—correctly rejected by the Court today—is one example of this phenomenon.
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