Wednesday, December 6, 2023

It’s illegal for gay people to discriminate against straight people … just not on these facts in this case

There is no such thing as "reverse" discrimination. Discrimination is discrimination, whether the victim is, for example, Black or white, female or male, gay or straight. When the employee claiming discrimination is in the majority, however, in the 6th Circuit they must not only show disparate treatment, but also must show "background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority."

Which brings us to the story of Marlean Ames, a straight woman who sued the Ohio Department of Youth Services for sex discrimination under Title VII claiming that her lesbian supervisor discriminated against her because of her sexual orientation. Ames claimed that OHYS passed her over for a promotion, demoted her, and promoted a gay man to her former position.

The 6th Circuit disagreed, focusing on Ames's failure to establish the necessary "background circumstances."

Plaintiffs typically make that showing with 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 by the employer against members of the majority group. But Ames has made neither showing. First, Ames was terminated as PREA Administrator by Walburn and Gies, who are both heterosexual.… Second, Ames's only evidence of a pattern of discrimination against heterosexuals is her own demotion and the denial of the Bureau Chief position. Under our caselaw, however, a plaintiff cannot point to her own experience to establish a pattern of discrimination.

So-called "reverse" discrimination is and remains illegal. It's just as illegal for the minority to discriminate against the majority. But it's a whole lot harder to prove.

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