Supreme Court Reaffirms Rule that Discrimination Based on Sexual Orientation is Sex Discrimination
Yesterday’s unanimous Supreme Court decision in Ames v. Ohio Department of Youth Services is primarily notable for the ruling that members of “majority” groups alleging employment discrimination under Title VII of the Civil Rights Act of 1964 must not be held to a higher standard of proof than members of “minority” groups. That holding is correct for both the reasons advanced by Justice Ketanji Brown Jackson’s opinion for the Court, and the additional points made in Clarence Thomas’s concurring opinion (joined also by Neil Gorsuch). But there is another noteworthy element of the ruling that also deserves attention: it reaffirms the rule that discrimination based on sexual orientation is a form of sex discrimination.
Marlean Ames, the plaintiff in the case, explicitly argued that she was a victim of discrimination based on sexual orientation, not generalized discrimination against women, as such. She claims she got passed over for a promotion and then later demoted because she is a heterosexual woman, and her employer – the Ohio Department of Youth Services – discriminated against her in favor of gays and lesbians (first, a lesbian woman, and then a gay man). Nonetheless, all nine justices appear to agree this is a form of discrimination covered by Title VII’s ban on discrimination based on sex.
In this case, the sexual orientation discrimination was discrimination against heterosexuals. But, obviously, the same logic applies to the far more common type of sexual orientation discrimination aimed at LGBT people.
The Supreme Court first ruled that sexual orientation discrimination qualifies as sex discrimination under Title VII in Bostock v. Clayton County (2020) (see my analysis of the ruling here and here). At that time, the ruling wa
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