The Antidiscrimination Discrimination Club

Ames v. Ohio Department of Youth Services and the steady inversion of civil rights law

How come straight people don’t get a parade? Is it discrimination when my boss puts his pronouns in his email signature? Why won’t my kids talk to me anymore?

While our nation’s brightest jurists have spent the last several months wrestling with just how emphatically they should green-light the autocratic takeover they’re largely responsible for creating, they’ve also found time to consider some of these very brave questions, culminating in last week’s Ames v. Ohio Department of Youth Services decision. The decision exemplifies so much of what’s wrong with our legal and political system—from the weaponization of civil rights laws, to the triumph of the reactionary movement, to the baffling naivete of liberals.

First, an overview of the facts. Marlean Ames, a straight woman, worked for the Ohio Department of Youth Services (Department) for a decade as an executive secretary. In 2014, she was promoted to the position of program administrator, where she received solid performance reviews from her gay supervisor. Then, in 2019, Ames applied for a promotion to the position of bureau chief. She didn’t get it, and the position would later be filled by a gay woman. Shortly thereafter, two straight higher-ups at the Department—both of whom were involved in the decision to deny her the promotion—subsequently demoted Ames from her program administrator role back to executive secretary, resulting in a pay cut. The program administrator role was later filled by a gay man.

So, Ames sued under Title VII of the Civil Rights Act, which prohibits employment discrimination on the basis of race, color, national origin, religion, and sex—including sexual orientation, gender identity, and pregnancy status. Traditionally, these kinds of Title VII claims are analyzed under a three-step test that was established by the Supreme Court in its 1973 McDonnell Douglas Corp v. Green decision. The test goes like this:

• Step one: The employee has to produce enough evidence to support an inference that their employer intended to deny an otherwise qualified applicant a position on the basis of the employee’s membership in a protected class (i.e., the employee must show that they were discriminated against based on their sexual orientation).

• Step two: The burden then shifts to the employer to show that they had a nondiscriminatory reason for the adverse employment decision.

• Step three: The employee gets a chance to rebut their employer by showing that the nondiscriminatory reason cited by the employer was, in fact, pretext for discrimination.

According to the lower court, Ames’s case failed at step one. That’s because some circuit courts—including the Sixth Circuit, where Ames appealed—have included an extra “step one” requirement for employees who allege reverse discrimination. This additional hurdle requires majority-group employees to provide evidence that shows their boss is the “unusual” employer who discriminates not against minorities, but against members of the majority. In Ames’s case, the Sixth Circuit reasoned, the requirement could be satisfied by showing that the Department decisionmakers who denied Ames a promotion and demoted her were gay, or by offering statistical evidence of a broader pattern of anti-straight discrimination at the Department. But because Ames was unable to provide such evidence, her case failed.

This additional requirement for majority-group employees is known as the “background circumstances” test, and it reflects the reality that it’s typically members of minority groups who face discrimination in the workplace (or anywhere else for that matter). And I’ll remind us, in 2025, that this reality is the whole reason the Civil Rights Act was passed in the first place.

But apparently that reality is not of much concern to the Supreme Court, which unanimously struck down the “background circumstances” test last week. The Court didn’t get to the merits of the case—that is, it didn’t determine whether Marlean Ames was, in fact, a victim of reverse discrimination. It only considered the legality of majority-group plaintiffs being required to meet an additional burden in these kinds of workplace discrimination cases, finding that this extra requirement runs afoul of the text of Title VII and the Court’s precedent. This means that, going forward, the same standard will be used for plaintiffs experiencing run-of-the-mill discrimination, and for those who face some adverse action for complaining about one too many HR-sponsored Pride-themed pizza parties.

The decision comes, of course, at a moment when the very notion of “diversity” is under attack. This is not a coincidence. Both the Ames decision and the Trump administration’s relentless efforts to terminate diversity initiatives throughout not only the federal government but private institutions are components of a broader, decades-long ideological war being waged by the Right, the purpose of which is to re-entrench rigid hierarchies. The battlegrounds on which that war is waged necessarily vary—they include the courts, electoral politics, governance, and the “culture”— but the bottom line is that the Right views them as nothing more than sites that must be leveraged to get to the outcomes it wants.

In the legal arena, that ideological war has, in part, taken shape through a gradual restructuring and dismantling of Civil Rights–era legal protections, which has only accelerated in recent years with a supermajority conservative Supreme Court. To date, the longtime organizing efforts of the reactionary political movement have culminated in the nation’s high court striking down affirmative action policies in higher education, gutting voting rights protections, and opening the door to legal challenges to both same-sex and interracial marriage. The Ames decision is their latest victory.

But wait just a minute. Wasn’t the Ames decision unanimous? Wasn’t it written by a liberal justice?

Ah, I’m glad you raise this important point, because it brings us to a deeper political problem that needs to be unpacked: the bottomless credulity of liberals. The Ames decision is the latest demonstration of how differently conservatives and liberals conceive of the law and what it’s for. As I’ve already alluded to above, for conservatives, the courts are not temples of neutral reason. They are the battlegrounds on which the weapon that is the law is used to achieve political goals.

Liberals, on the other hand, continue to buy into a myth that they alone subscribe to—that the law and the various methods of interpretation that exist to understand it provide a neutral set of guidelines that, if interpreted correctly, will guide us to the just, fair, and technically correct outcome. The law floats serenely above and outside politics, acting as an impartial check on it.

To be sure, conservatives pretend to buy into this myth, too. It gives them greater legitimacy in the eyes of liberals. They’ll wax poetic about the historical foundations of English common law or the philosophical views of the framers. Liberals repeatedly take this bait, engaging with these arguments in good faith, all while conservatives continue to shift the goalposts using whatever means necessary to get to the outcomes they want.

The broader ideological debate underlying the Ames decision illustrates this point well. There’s long been heady debates among legal scholars about whether antidiscrimination laws should be understood through an “anti-classification” lens or an “anti-subordination” one. At a very high level, as the names suggest, the former view holds that any classifications based on characteristics such as race or sex should be inherently suspect, regardless of intent or motive, while the latter only views classifications made for purposes of subordinating minority groups and perpetuating existing inequities as problematic.

The Fourteenth Amendment and Civil Rights–era laws were very obviously passed with the purpose of preventing subordination of minorities, specifically Black Americans. But over time, white supremacists on and off the courts obscured this original purpose. The anti-classification principle gained traction, winning over an increasing number of liberal adherents who were persuaded that the view made good sense; that it was, after all, a “fair” approach. Today, it’s become the prevailing jurisprudential view, as the unanimous decision in Ames illustrates.

Here’s the thing that liberals can’t seem to grasp: Reactionaries don’t, in good faith, care about the theoretical justifications for civil rights protections. The anti-classification argument is, to them, nothing more than a vehicle for chipping away at the potential of civil rights laws to deliver on what they were intended to achieve. Reactionaries will abandon any commitment to the anti-classification principle the moment they have the opportunity to do away with civil rights laws entirely. And in the meantime, they’ll continue to weaponize those very civil rights laws in their quest to subvert their original purpose.

You can see the difference between liberals and conservatives play out in the Ames decision (and notably, throughout the merits stage, too, with both Stephen Miller’s America First Legal Foundation and the Biden administration filing amicus briefs in support of Marlean Ames). Jackson’s opinion is thoughtful and careful. She walks through the McDonnell Douglas framework, parses the text of Title VII, highlights the statute’s focus on individuals rather than groups, and explains that under Court precedent, plaintiffs of all stripes must be held to the same standard and therefore the “background circumstances” test doesn’t pass legal muster.

Now, compare that with Thomas’s concurrence, which Gorsuch joined. He agrees with Jackson that the “background circumstances” test should be struck down, but he uses the occasion to decry “atextual legal rules and frameworks” and “[j]udge-made doctrines that have a tendency to distort the underlying statutory text” writ large. The entire McDonnell Douglas framework itself is, according to Thomas, one of these judge-made doctrines. It doesn’t need to be refined; it needs to be scrapped altogether. And so he openly calls for litigants to bring to the Court an opportunity to kill it off.

That’s the asymmetry. While liberals are convinced that, through esteemed legal reasoning, they will arrive at the “correct” legal conclusions, conservatives start at the conclusion they wish to arrive at and take a sledgehammer to the obstacles that stand in their way of getting to it. Ames isn’t just a case about employment discrimination or some vague notion of fairness. It’s another step in the reactionary project of hollowing out civil rights law and retooling it as a weapon. The question is not whether reactionaries will try. The only question is whether liberals will wake up before there’s nothing left to defend.

If you ask Eleanor

“A people, to be free from discrimination in their hearts, must be mature and secure. Discrimination against others because of race, sex or religion arises, of course, from fear. But we can never wipe out the basic rights of human beings, and unthinking discrimination is dangerous.”

- Eleanor Roosevelt, My Day (February 12, 1947)

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