At the heart of the debate over diversity, equity and inclusion is a question: How much should the law treat a person as an individual rather than as a member of a group?
For a very long time, American law and American institutions answered that question unequivocally. People were defined primarily by the group they belonged to, and if they happened to be Black or Native American or a woman, they were going to enjoy fewer rights, fewer privileges and fewer opportunities than the people who belonged to the categories white and male.
That was — and remains — a grievous injustice. At a minimum, justice demands that a nation and its institutions cease and desist from malicious discrimination. But doesn’t justice demand more? Doesn’t it also require that a nation and its institutions actually try to provide assistance to targeted groups to help increase diversity in employment and education and help targeted groups overcome the systemic effects of centuries of discrimination?
On Thursday, the Supreme Court unanimously decided a case that was directly relevant to the latter question, and while the outcome wasn’t surprising, the court’s unanimity — and the identity of the author of the court’s opinion — certainly was.
The facts of the case, Ames v. Ohio, are simple. In 2004, the Ohio Department of Youth Services hired a heterosexual woman named Marlean Ames to work as an executive secretary. By 2019, she’d worked her way up to program administrator and set her sights higher — applying for a management position in the agency’s Office of Quality and Improvement.
The department interviewed Ames for the job but decided to hire someone else, a lesbian. The department then demoted Ames and replaced her with a gay man. Believing she’d been discriminated against on the basis of her sexual orientation, she filed suit under Title VII of the Civil Rights Act of 1964.
She lost her case in the trial court and at the court of appeals. So she appealed to the Supreme Court. She argued that the lower courts had applied a discriminatory standard to her simply because she was straight.
Ordinarily, Title VII discrimination suits are resolved through what’s called a burden-shifting framework. Initially, the plaintiff, in this case Ames, bears the burden of demonstrating a prima facie case of discrimination, providing facts “by producing enough evidence to support an inference of discriminatory motive.”
If the employee can clear that bar, the burden shifts back to the employer for it to show that it had a “legitimate nondiscriminatory reason” for its actions.
When an employer makes its case, the employee then gets a “fair opportunity” to show that the employer’s justifications were mere pretext for discrimination.
During my law practice, I litigated a number of Title VII cases, and let me share a typical example of how the law operates. Imagine you represent a group of Black plaintiffs who claim they were fired because of their race, and you present evidence that the last five employees who were fired were Black, even though Black employees were only a small percentage of the work force.
The employer admits that it fired the employees, but it presents evidence that each was guilty of absenteeism; they had skipped work.
That’s game over, right? If there’s evidence employees had skipped work, then shouldn’t they lose? Not so fast. You were ready for this defense and present evidence that white employees were retained in spite of much worse disciplinary records, including worse records of absenteeism.
By doing so, you’ve established that absenteeism was just an excuse. The real reason for the adverse job action was racial animus.
That’s the normal rule. But in the Court of Appeals for the Sixth Circuit — the federal court of appeals that covers Michigan, Ohio, Tennessee and Kentucky — the rule was different for members of so-called majority groups.
And the Sixth Circuit wasn’t alone. Four other circuits also had longstanding rules imposing heightened evidentiary requirements on majority groups.
If you were a member of a majority group — such as a straight person claiming to be the victim of sexual-orientation discrimination — you had an extra legal burden. You had to establish “background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.”
The result was a two-tiered system of justice, with different legal tests dependent on whether you were a man or a woman, white or Black, gay or straight.
In its ruling, the Supreme Court rejected the Sixth Circuit’s test. It held that all plaintiffs approach the law equally, regardless of their group identity, and all plaintiffs have to meet the same legal burdens to win their case. There can be no extra hurdle for members of majority groups.
I wasn’t surprised by the outcome, but I was at least mildly surprised that it was unanimous. And I was definitely surprised by the author of the majority opinion — Justice Ketanji Brown Jackson, one of the court’s most liberal members.
Jackson’s words were clear. Nondiscrimination law is focused on protecting individuals. Quoting previous Supreme Court cases, Jackson wrote, “Discriminatory preference for any group, minority or majority, is precisely and only what Congress has proscribed.” As a consequence, “Congress left no room for courts to impose special requirements on majority-group plaintiffs alone.”
Crucially, the court didn’t rule that Ames had been discriminated against. Instead, it sent the case back down to the lower court to be decided under the proper, equal standard.
Standing alone, the Ames case is relatively narrow in scope. It only holds that all employment discrimination plaintiffs have to meet the same test. Taken together with the court’s other recent cases, including most notably 2023’s Students for Fair Admissions v. Harvard, which prohibits race preferences in university admissions, the lesson is plain: Any discrimination rooted in immutable characteristics, such as race, sex or sexual orientation, will automatically be legally suspect, regardless of whether the motivation for discrimination was malign or benign.
I don’t want to overstate the degree of judicial consensus here. Jackson was in the majority in the Ames case but dissented from the court’s Harvard ruling, as did the court’s two other liberals, Justices Elena Kagan and Sonia Sotomayor. But the cumulative effect of all the court’s precedents — unanimous and otherwise — is still quite clear.
As a result, much of the political and cultural debate around efforts to increase diversity, equity and inclusion has been decided by the courts. The precedent is settling around a statement by Chief Justice John Roberts in a 2007 case called Parents Involved in Community Schools v. Seattle School District No. 1: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
But if the law is going to require individualized decisions, does that eliminate the possibility of systemic change? Does it leave minority groups permanently behind?
No, it does not. The Ames decision didn’t raise the bar for nondiscrimination cases. It just placed everyone in the same legal position. And as Justice Clarence Thomas wrote in his concurring opinion in the Harvard case, schools may grant “an admissions preference to identified victims of discrimination.” It can also take into account their individual struggles with, say, income or health.
Collectively, these individualized decisions can have a systemic effect. When there has been systematic injustice, individualized assessments of resilience and achievement will have a disproportionate positive effect on marginalized communities. Systemic injustice will always have individual effects, and addressing those individual effects will ultimately result in systemic change.
As Jackson wrote in her dissenting opinion in the Harvard case: “Gulf-sized race-based gaps exist with respect to the health, wealth and well-being of American citizens. They were created in the distant past, but have indisputably been passed down to the present day through the generations.” Yes, and that means that when admissions committees (or hiring committees) consider the socioeconomic status of applicants, then that will disproportionately benefit victims of past discrimination.
At the same time, however, you can’t use skin color, sex or sexual orientation as a proxy for adversity.
It’s tragic that the words diversity, equity and inclusion have been caught up in the culture war. Each of those values matters, but they cannot be used as a pretext for inflicting new injustices. As Jackson affirmed in Ames, “Title VII’s disparate-treatment provision draws no distinctions between majority-group plaintiffs and minority-group plaintiffs.” Any effort to combat historical injustice must comply with a cardinal rule of the Constitution: We are all equal before the law.
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David French is an Opinion columnist, writing about law, culture, religion and armed conflict. He is a veteran of Operation Iraqi Freedom and a former constitutional litigator. His most recent book is “Divided We Fall: America’s Secession Threat and How to Restore Our Nation.” You can follow him on Threads (@davidfrenchjag).
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