The nation’s highest court heard arguments in what many are calling a “reverse discrimination” case, in which a straight plaintiff sued her state agency employer for violating federal antidiscrimination law for passing her over for a promotion because she is straight and not gay.

The case gives the justices the chance to scrap a rule that requires “majority” plaintiffs in discrimination cases to adhere to a higher burden of proof than those who claim they were discriminated against for being part of a minority class.

Marlean Ames’s discrimination claim

Marlean Ames claims that she is a victim of sexual orientation discrimination at the hands of her employer, the Ohio Department of Youth Services (ODYS), because she was not hired for a job she wanted. ODYS supervises the confinement and rehabilitation of children and teenagers who commit felonies, and Ames worked for 18 years as an executive secretary before being promoted to program administrator in 2014.

Three years later, Ames began reporting to a new supervisor, Ginine Trim, who is gay. Trim gave Ames a favorable review in a 2018 performance evaluation. However, the next year, Ames applied for — but did not get — a new position as a bureau chief. Shortly thereafter, Ames was removed from her position as program administrator. She was given the option to return to her previous job, but at a salary that would go from $47.22 an hour to $28.40 per hour.

Ames stayed at ODYS and later received a different promotion. The department then hired a gay woman for the bureau chief position that Ames wanted and a gay man for the program administrator position that Ames previously held. Ames claims that she was passed over while less qualified individuals were hired despite their lack of qualifications.

By contrast, ODYS maintains that Ames was demoted after a new governor took office and the agency restructured its operations, and that Ames had difficulties getting along with coworkers.

Ames sued for violation of her rights under Title VII of the Civil Rights Act. She lost at both the district and circuit court levels.

A circuit split on a rule for the majority

The issue in the case is not whether a member of a majority group can ever be the victim of discrimination — they certainly can. Rather, the issue is whether as a member of a majority group, Ames is required to provide additional evidence that a gay plaintiff would not need to prove.

Most federal courts consider discrimination claims in the same way regardless of whether the plaintiff is a member of a majority or minority group. Put another way, the same standards are used to assess racial discrimination against Black and white people or sex discrimination against gay or straight people.

However, some federal circuits, including the Cincinnati-based U.S. Court of Appeals for the Sixth Circuit where Ames’s case proceeded, apply a rule in which “majority” plaintiffs are required to show “background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority” in order to survive summary judgment.

In its ruling in favor of ODYS, the  Sixth Circuit issued a per curiam opinion in which it said that because Ames is straight, she does need to show “background circumstances.” Donald Trump SCOTUS shortlister Judge Raymond Kethledge penned a separate opinion in the case agreeing with the holding, but slamming the background circumstances rule as one that unfairly, “impose[s] different burdens on different plaintiffs based on their membership in different demographic groups.” Kethledge called the rule a “deep scratch across [the] surface” of Title VII that discriminates in the very way the statute forbids.

Agreement in court

Joe Biden’s administration participated in the case at the briefing stage, in which then-Solicitor General Elizabeth Prelogar said government agrees with Ames that the “background circumstances” requirement is not supported by Title VII’s text and is inconsistent with Supreme Court precedent.

Assistant to the Solicitor General Ashley Robertson argued the case Wednesday on behalf of the Department of Justice, and took the same position.

ODYS argued in briefs that the “background circumstances” requirement is not really an additional element for which plaintiffs are forced to bear the burden, but rather, simply a “method of analysis” to be used by the court.

During the roughly hourlong oral arguments, there appeared to be relative agreement among the justices — and at times, even the opposing litigants.

“At bottom, all Ms. Ames is asking for is equal justice under law,” said attorney Xiao Wang, who argued on Ames’s behalf.  “Not more justice, but certainly not less. And certainly not less because of the color of her skin or because of her sex or because of her religion.”

“We’re in radical agreement today on that, it seems to me,” Justice Neil Gorsuch commented at one point in the proceedings.

Ohio Solicitor General T. Elliot Gaiser, who argued in defense of the Sixth Circuit’s decision, said that, “Ohio agrees it is wrong to hold some litigants to a higher standard” because of their identity and that plaintiffs like Ames “should have the same burden” as a gay plaintiff who likewise alleged discrimination.

Justice Elena Kagan noted that the topics on which Gaiser appeared to debate were about issues that have “nothing to do with” the central question in Ames’s case.

The justices teed up the case for a relatively narrow ruling in Ames’s favor that potentially reiterates some of what the Court said in the 2022 case that eradicated affirmative action in college admissions. In the case, Chief Justice John Roberts wrote that equal protection is “universal in its application.”

A ruling in Ames’s favor by the justices, however, would not mean that she wins her discrimination lawsuit against ODYS. Rather, it would likely mean that her case is revived such that she would have the opportunity to proceed and have the chance to prove her allegations.

You can listen to Wednesday’s full oral arguments here.

Love true crime? Sign up for our newsletter, The Law&Crime Docket, to get the latest real-life crime stories delivered right to your inbox.

1. Home
2. Daily News
3. Law prof who wrote about ‘the law school…

Law Professors

Law prof who wrote about ‘the law school scam’ settles discrimination suit for $160K

By Debra Cassens Weiss

February 21, 2024, 8:19 am CST

A University of Colorado Law School professor who blogged at Inside the Law School Scam has settled his June 2023 lawsuit alleging pay discrimination and retaliation.

The law school will pay $160,000, with $60,000 going to law professor Paul Campos and $100,000 to his attorney, Law.com reports.

He will also report to a person other than Lolita Buckner Innis, the law school’s dean.

The Denver Post and Above the Law also have coverage.

Campos had alleged pay discrimination based on his Latino ethnicity and retaliation for raising concerns about pay and unfair treatment.

When he filed the suit, Campos told the ABA Journal that he has had “a bullseye” on his back for comments that he made criticizing the law school’s financing. He said the law school spends twice as much as it generates in revenue. Additionally, in 2014, the Atlantic published a feature that he wrote, “The Law School Scam,” which focused on for-profit schools.

The university said in a statement it had been in negotiations with Campos to resolve the dispute since before the suit was filed. Campos dismissed claims against Innis and Philip DiStefano, the university’s chancellor, the university told publications covering the settlement.

“We do not typically speak to personnel matters, but given that the university denies any wrongdoing, we will not have a change in leadership,” university spokesperson Nicole Mueksch told the Denver Post.

Campos had alleged violations of Title VII of the Civil Rights Act of 1964 and Section 1981 of the Civil Rights Act of 1966.

Campos blogged about the settlement in three posts at the Lawyers, Guns & Money blog here, here and here.

“Too often, the details of this kind of story are never told because of a nondisclosure agreement, which is something I wasn’t willing to consider,” he wrote.

Campos said Innis had refused to review the recommendation of a peer review committee that gave him a bad annual review, “even though I had had an excellent year in terms of all conventional metrics of evaluation.” He alleges that the faculty peer review committee used “an arbitrary and standardless process” to evaluate faculty members.

The dean then engaged in “a series of egregious retaliatory acts after my lawyer sent the university a letter putting it on notice that we were considering filing a lawsuit,” he alleges.

Campos said he was kicked off an important committee and removed from teaching a class.

Campos told the Denver Post that he was “extremely happy” with the settlement.

“I got substantial compensation, and more important than that, I had [Innis] removed as my supervisor permanently,” he said.

A pastor slapped with over a dozen criminal zoning charges after he insisted on keeping his church doors open to the homeless has sued a city in Ohio alleging religious discrimination is behind efforts to shudder his sanctuary.

Pastor Chris Avell vows under his Christian faith he is bound to help the hungry and house those without homes at his 24-hour ministry in Bryan, Ohio, known as Dad’s Place.

But officials in the small city outside of Toledo say Dad’s Place turned into a hot spot for “transient” crime starting last spring and allege that Avell had failed for months to adhere to numerous local fire ordinances as well as residential-use rules for his property.

The first floor, Bryan officials said in a press release reviewed by Law&Crime, was not permitted for residential use; the “lives and safety of those in the building” were in potential jeopardy due to things like “improper installation of laundry facilities, inadequate or unsafe exit areas” and more, according to officials.

Avell was arraigned on Jan. 11 and pleaded not guilty. Eleven days later, the pastor decided he wouldn’t take the charges lying down and with his attorney and lawyers at the religious liberty group First Liberty Institute now aiding him, he filed a claim against Bryan officials urging a federal court to issue a temporary restraining order and preliminary injunction barring the mayor and his officers from enforcing city ordinances.

By doing this, it would allow those who need shelter and food in the cold Ohio winter to be protected and would, moreover, allow the church to continue “using the entirety of its property for religious purposes,” the motion requesting the restraining order argues.