A case that the Supreme Court will hear this year raises a fundamental question about why we outlaw some types of discrimination.
It’s worth thinking through that question, given that discrimination is, unfortunately, an ever-present human phenomenon, and because America, unique among other nations, is so deeply committed to stopping it.
The case is Ames v. Ohio Department of Youth Services, and the facts appear to be a pretty run-of-the-mill employment discrimination case.
Marlean Ames, a heterosexual woman, worked for the Ohio Department of Youth Services for many years and had good performance reviews. In the past two years of her employment, she was assigned a homosexual supervisor, who also gave her good reviews.
Then, in the final year of her employment, Ames applied for a promotion. What happened next was a whirlwind. She was denied the promotion, her supervisor told her that she should retire, she was fired from her current job, and then given the option of staying on if she accepted a demotion and a 40% pay cut.
Ames took the demotion, and the department gave her previous job to a homosexual man and the promotion she wanted to a homosexual woman. Both were “arguably less qualified” than she was, and one “lacked the minimum qualifications for the job.”
Ames filed a sexual-orientation discrimination lawsuit. (Sexual orientation discrimination is considered sex discrimination under the Supreme Court’s decision in Bostock. v. Clayton County.)
She lost in the lower courts, but not because the courts found that there was no discrimination. The case never got that far. Ames lost because she’s part of a “majority” group (heterosexuals), and as such, she must provide more preliminary evidence of discrimination than someone in a “minority” group before she can get a trial.
If Ames had been in a minority group, all she would have to show to get a trial is that someone with a different sexuality was treated better. But because she is in a majority group, she must show “background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.”
The evidence that she presented didn’t rise to that high threshold.
Why the unequal standards?
That question turns on another one: What’s the point of antidiscrimination law? That is, what are we trying to prevent?
The judges who long ago created the unequal standard that Ames now faces would argue that the point of antidiscrimination law is to prevent the use of political and private power against groups of people who cannot easily wield political power in their defense.
There’s something to this argument, but it’s incomplete. What the argument gets right is that minority groups often cannot wield power to defend themselves against what the Founding Fathers called the “tyranny of the majority.”
But what it gets wrong is its assumption that power dynamics among groups is all that matters.
That argument misses the fact that there’s a higher morality at issue, and that the law is concerned with this morality.
It’s wrong to treat any person—no matter what groups they belong to—with hate or arbitrariness. To fire someone simply because of his or her sex (and for no other reason) is either hateful or arbitrary, and in either case, immoral.
To hate what is not evil is immoral, and to refuse to use the gift of reason is immoral, especially when those choices hurt others.
Choice is the key here.
The choice to discriminate arbitrarily is immoral, and its immorality doesn’t depend on the group that any person belongs to. It depends on whether you’re acting toward another person out of hatred or arbitrariness, or whether you’re acting reasonably.
What is reasonable will, to some extent, depend on the circumstances. It’s reasonable to discriminate against atheists when hiring Christian ministers, which is why the Civil Rights Act expressly permits that sort of discrimination. But it is unreasonable to fire someone from the Ohio Department of Youth Services simply because they’re straight, black, or Hindu. In all three cases, the choice would be equally immoral. It doesn’t matter what group your victim belongs to; what matters is your choice.
Antidiscrimination law doesn’t police all discriminatory choices, only certain ones that implicate the sorts of animus—racial, religious, sexual—that tend to tear apart the national fabric.
There are always trade-offs in choosing which categories should be subject to such laws. But with respect to those that we choose, the law should focus on figuring out whether a particular discriminatory choice is reasonable or not, and it should not treat people better or worse depending on what group they’re part of.
A group-focused approach misses the higher morality that the law is trying to serve, and it reduces valuable individuals into mere parts of abstract groups.
When the Supreme Court decides Ames’ case, it should endorse the correct understanding of antidiscrimination law by eliminating the unequal standard that Ames faced in the lower courts.