Marlean Ames sued her employer for discrimination, claiming she was passed over for jobs in favor of less qualified gay candidates because she is straight.Mother Jones; Maddie McGarvey/For The Washington Post/Getty; Nicolas Economou/NurPhoto/Zuma
In 2020, Marlean Ames alleged that she was denied a job promotion and subsequently demoted by the Ohio Department of Youth Services because she is heterosexual. Her supervisor at the time was gay.
Ames sued her employer for discrimination, but lower courts initially dismissed her case. She hadn’t met a legal bar called the “background circumstances” rule, in which members of majority groups have to show additional evidence of discrimination for their cases to proceed.
But last week, the US Supreme Court unanimously ruled that the “background circumstances” rule is inconsistent with anti-discrimination laws. In the decision written by Justice Ketanji Brown Jackson, the court said that majority groups shouldn’t have to meet a higher legal bar than minority groups.
As the Trump administration wages a battle against the concept of Diversity, Equity, and Inclusion (DEI)—removing references to slavery abolitionists on government websites and charging Harvard with discriminating against white male job applicants—some conservative groups are celebrating the ruling as a clear victory towards ending diversity-friendly policies.
But Xiao Wang, the University of Virginia law professor whose legal clinic won the case, has a much more nuanced take.
This interview has been edited for length and clarity.
Where you were when the opinion was announced? What were you doing?
You never know when your opinion gets released, but it’s generally at 10 a.m. on Thursdays. So around 9:45 or so, I usually have the Supreme Court’s website on automatic refresh on my computer. It’s like watching the ball drop on New Year’s—only for legal nerds. I was at home drinking coffee, wearing a raggedy t-shirt, and hadn’t brushed my teeth or anything yet. I had to get ready really quickly and come to the law school to try to take some interview requests.
How did you get involved in this case?
The Sixth Circuit is the lower court that decided this case. I used to be a clerk there, so I try to keep up with their opinions. The opinion in this case didn’t seem quite right. Even the lower court suggested that maybe the Supreme Court should look at it. I reached out to the local trial counsel, Ed Gilbert, on this and talked about how we—as a law clinic—could help. I think Ed was reassured by how I approached the case. I said, “Look, I think this is a pretty narrow legal issue. I think it’s something that hopefully we can find some common ground on and bring it up to the Supreme Court in a respectful and nuanced manner.”
Colloquially, people are describing this case as being a win for the fight against “reverse discrimination.” But what narrow legal question was the court really addressing?
I guess I have an issue with the colloquial term. The Supreme Court never uses that term, and and a lot of the lower courts don’t use that term. And so to me, what this case was about is just discrimination.
The simplified question was, “How do [anti-discrimination laws] apply across different situations? And I think our answer to that was to apply the same legal standards and legal framework [in any discrimination case]. The outcome might come out differently in different situations based on the facts on the ground. But judges should have the same law in front of them and apply it in the same even-handed manner.
How would you explain to a ninth grader what the court ultimately decided in this case?
I think what it comes down to is the idea that anyone can be subject to discrimination. And if they are subject to discrimination—at least in the workplace—and they want to bring a lawsuit, then the judge should apply the same law, the same standards to them.
Also, the underlying premise behind this case was “majority group” versus “minority group” discrimination. But it can be hard to make that distinction, because we can be part of a majority group in some ways, but not others… I think it’s just easier for courts to say, “Well, the best way to figure out whether discrimination happened is based on the same legal framework and legal standards.”
You won your case, but Miss Ames’s legal fight is ongoing. The Supreme Court “vacated and remanded” it. Can you explain what that means?
What we were asking from the justices was really just to let her have her day in court. We removed the legal obstacle blocking her case from proceeding, but the next big step after that is usually to present your factual story to a jury. Let’s have 12 people in Ohio see whether they believe that this is what happened—whether it was driven by discrimination. And if it was, what sort of remedy you should get? We won’t be involved in that part of her legal fight.
There’s been a lot of discussion lately—including by the President of the United States—about efforts to end DEI initiatives. There’s an insinuation here that any sort of efforts aimed towards achieving Diversity, Equity, and Inclusion have the effect of discriminating against majority classes—such as white people. Is there a place for nuanced, carefully built DEI policies?
I think a lot of us want diverse workplaces and diverse educational institutions, and for these places to reflect all different types of people and all different types of views. One of the reasons that I wanted work with law students was to be able to reach out to students that might not come from the traditional backgrounds. And I give so much credit to my students for producing the great work that leads to unanimous decisions like this.
On a micro scale, I definitely think [DEI policies are] important. Maybe these individual policies will be tested in the courts—I don’t know how they’ll rule on them. My sense from Chief Justice Roberts’s opinion in the [Students for Fair Admissions] affirmative action case is that, at the end of the day, he thinks it’s laudable to have this goal of greater diversity. It’s really just a question of how you carefully frame it within the confines of the Equal Protection Clause and other legal constraints. And I don’t know, there might be some more stops and starts before we figure out the right recipe, but certainly I think it’s something we shouldn’t stop trying to do.
Are you concerned that people who lead the anti-DEI fight may misconstrue the merits of this specific, narrow Supreme Court decision to gain advantages for majority classes at the expense of marginalized ones?
That’s a really tough question. I’ve learned—especially in this case—that interest groups may take whatever they want from the case and run with it. But that’s different than what the law actually says, and how it actually gets applied in courts.
