The Supreme Court Case That Will Dismantle DEI’s Legal Foundation

Ames v. Ohio Department of Youth Services will be a wrecking ball to the $10 billion-a-year DEI industry.

In 2019, Marlean Ames applied for a promotion at the Ohio Department of Youth Services, where she had worked for 15 years. She didn’t get the job.

A few weeks later, despite an exemplary work record, Ames was demoted and her pay was cut nearly in half. Her former position was given to a 25-year-old gay man. Ames alleges her boss, who is gay, denied her promotion and then demoted her because she’s straight. So she sued her employer for discrimination.

For several years, Ames’s case made its way through the U.S. court system before landing at the 6th Circuit Court of Appeals. That court ruled against her even though it viewed “the evidentiary record in the light most favorable to Ames.”

The problem was that Ames is heterosexual. Though the Supreme Court has ruled that Title VII prohibits discrimination on the basis of sexual orientation, it had also established that any plaintiff alleging discrimination must first pass a prima facie test — a minimal burden of proof required for a party to present evidence to the court, which, if not rebutted, would justify a verdict in their favor. Members of “majority” groups face an additional hurdle: They must show “background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.”

In 2023, an Ohio court ruled that Ames had established a prima facie case that would have been sufficient “if she were a gay person,” but had failed to provide sufficient evidence to meet the heightened “background circumstances” standard. Therefore, the court granted summary judgment to her former employer.

Ames was not done, however.

She appealed to the Supreme Court, which took up her case. Oral arguments were held in February, and though the Supreme Court is deeply divided ideologically, its conservative and liberal wings were singing in unison during Ames’s hearing.

Justice Elena Kagan questioned why in a discrimination lawsuit “a majority-group plaintiff has to show something more than a minority-group plaintiff,” while Justice Sonia Sotomayor said there was “something suspicious” about the circumstances of Ames’s firing and the state was putting the case “on its head” by requiring the plaintiff to win on prima facie evidence.

“We’re in radical agreement today,” Justice Neil Gorsuch quipped.

Virtually everyone agreed that Title VII did not carve out a separate standard for certain groups, including the state’s own counsel.

“I think the idea that you hold people to different standards because of their protected characteristics is wrong,” state Solicitor General T. Elliot Gaiser told Kagan at one point.

Gaiser is right. The separate standard is wrong, both legally and morally.

One needn’t have a law degree to see that a federal law designed to ensure the equal treatment of people should be applied equally. Having different standards for straight and gay people undermines the ethos of the Civil Rights Act and the American ideal of equal treatment before the law.

But the idea of treating people equally runs counter to the diversity, equity, and inclusion ideology that has dominated universities and workplaces in recent years.

DEI’s paradoxical objective mirrors something out of Alice in Wonderland: create a more equal society by treating people unequally. In this framework, discrimination is not only accepted but encouraged — so long as it benefits preferred groups.

“The defining question is whether the discrimination is creating equity or inequity,” says Ibram X. Kendi, the author of How to Be an Antiracist. “If discrimination is creating equity, then it is antiracist. If discrimination is creating inequity, then it is racist.” Kendi’s vision of treating people unequally to create a more equal society was embraced in workplaces and even by universities across the United States until the Supreme Court struck down race-based admissions policies in 2023.

Which brings us back to Ames.

The Supreme Court appears “virtually certain” to side with “the straight white woman” (as media often refer to her) and reject the heightened standard for “majority-group” plaintiffs.

There’s a very good reason for this. Title VII prohibits discrimination on the basis of sex, race, and sexual orientation. Period. The federal law contains no “creating equity” exception, as much as Kendi and DEI advocates might wish it had, and says nothing about separate standards for protected classes.

By removing the higher threshold for people in “majority groups,” the Supreme Court will open the door for all employees who’ve been discriminated against based on protected characteristics to sue employers under Title VII.

This is a big deal. For years, employers have actively discriminated against people like Ames to advance DEI goals. Those days appear to be coming to an end.

Employment law firms are already saying that the expected Supreme Court decision is likely to go “beyond the confines of Title VII,” warning that its implications for DEI policies will be far-reaching.

I’ll go a step further and predict that Ames v. Ohio Department of Youth Services will be a wrecking ball to the $10 billion-a-year DEI industry. And that’s a good thing — because a society that truly values equality should reject policies that encourage or demand discrimination in the name of equity.

This article originally appeared in The Washington Examiner.