June 6, 2025 • 32 mins
Ames v. Ohio Department of Youth Services was decided yesterday. The court unanimously sided with the Ohio woman who claimed she was denied a promotion because she is straight. It is and should be all about your knowledge, skills & abilities. Sexual orientation should have nothing to do with it.
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Speaker 1 (00:00):
It's good to law school.
Speaker 2 (00:02):
Because we're in that season where we're going to start
getting a lot of Supreme Court cases. And I know
we got a gun case. And I'll get to the
gun case probably either on the nationally syndicated program tomorrow
or on Monday, just depends on what I got to
do tomorrow.
Speaker 1 (00:20):
We'll see. But today I.
Speaker 2 (00:22):
Want to talk about a case called Ames versus Ohio
Department of Youth Services. It was decided yesterday. One of
the things that I want you to think about to
give you a little perspective as I go through this
case and what happened. I want you to pay attention,
particularly in the as I described the facts of the case,
(00:46):
the underlying facts of how did this case, what does
it involve? I want you to think about. I want
you to pay attention to some of the dates because
when you realize that it's twenty five and we're talking
about things that may have taken a place in without
(01:07):
giving you a year yet, you'll realize just how long
it takes for a case to work gets way through.
Sometimes you have to go through the administrative procedures, so
you might have to go to you know, the Equal
Employment Opportunity Commission, and then you have to you know,
once you go through all of that process, then you
(01:27):
have to go through the trial court. Then you have
to go through the appellate courts, and then hopefully maybe
the Supreme Court will take your case, but not always,
and that takes time.
Speaker 1 (01:39):
So this case is about whether.
Speaker 2 (01:41):
People who belong to what's called a majority group, and
in this case, let's talk about straight people or white people.
Straight white people, Yeah, straight white people, whether or not
straight white people or majority groups like that, have to
meet an extra requirement to prove discrimination in the workplace
(02:07):
under Title seven of the Civil Rights Act of nineteen
sixty four. Was that law due that law bans discrimination
at work based on things like everything. You know, we
talk about this a lot based on race, sex, religion,
or sexual orientation. Now, I've always believed that discrimination at
(02:29):
its heart is about immutable characteristics race, sex, religion, even religion.
Speaker 1 (02:41):
You might begin to think that, Michael, that's.
Speaker 2 (02:44):
Not really immutable, because I know Protestants who have converted
to Catholicism or vice versa. I know Jews have converted
to Christendom and Christians have converted to Judy. Some people
end up becoming Buddhists, whatever. So religion may not be
(03:05):
an immutable characteristic, and sexual orientation that opens up a
whole can of worms. Are you born gay, straight by
whatever you see? Who knows? But any regardless of what
we may think about it. I think about discrimination in
terms of immutable characteristics, particularly race and sex. But the
(03:30):
Civil Rights Act, Title seven, the Civil Rights Acts in
nineteen sixty four says you cannot discriminate based on race, sex, religion,
or sexual orientation. So this particular case, the Aims case,
focused on a rule called the background circumstances test. That's
(03:50):
what some courts use in order to make it more
difficult for straight white people or these majority group people
to prove that they had been discriminated against. The Court
unanimously nine to zero struck down that rule. Kaitanji Brown Jackson,
(04:15):
or as I like to call her, Jackson, Brown wrote
the majority opinion. Now Clarence Thomas, joined by Justice Gore Sutch,
they both wrote concurring opinions, but they wrote concur Well,
I'll explain why they wrote concurring opinions in the minute.
So the people involved are Marlene Marlenne. I'm not quite
(04:41):
sure any pronouncer named Aimes. This is a heterosexual, straight woman.
I know that's redundant, but I'm going to emphasize straight
the vernacular. A straight woman that worked for the Ohio
Department of Youth Services since two thousand and four. She
was promoted to a management role in an administrator's role
(05:04):
in twenty fourteen, but after she got a new supervisor
in twenty seventeen, she started having problems. This case also
involves the Ohio Department of Youth Services. That's her employer,
that's the agency that runs programs for youth in Ohio.
Speaker 1 (05:28):
So what did she claim?
Speaker 2 (05:30):
She claimed that she was discriminated against that work because
she's a straight, white woman, in particular because she's a
straight woman. She claimed that she was denied a promotion
and that she was actually demoded, with those roles given
to a lesbian woman and a gay man, respectively. So
(05:51):
what happened to her? Here's what you need to know
in two is why I want you to pay attention
to the dates. It's twenty twenty five. The first thing
that happened to her was in two thy seventeen, eight years.
Speaker 1 (06:09):
Ago, she got a new supervisor.
Speaker 2 (06:14):
Jeanine or something trim. She's a lesbian. In twenty nineteen,
six years ago, ms Ames applied for promotion. She wanted
to be the bureau chief of quality. She didn't get
that job. It went to a coworker who was lesbian. Now,
(06:35):
remember she got a new supervisor in twenty seventeen, it
was a lesbian. In twenty nineteen, she applied for a
promotion and that she didn't get because her supervisor, who's
a lesbian, gave the job to a coworker who.
Speaker 1 (06:50):
Was also a lesbian.
Speaker 3 (06:52):
It was at Beehive a lesbianism'm.
Speaker 2 (06:55):
And then after that she got demoted from her administrator
rook administrator role and her job was then given to
a twenty five year old gay guy. And that demotion
came with the pay cut. You don't think this one
was pissed off. Of course you'd be pissed off. This
(07:15):
is why I this is why I emphasize in as
much as I can about how it's it's all about
your knowledge, your skills, and your abilities.
Speaker 1 (07:29):
Everything else is irrelevant.
Speaker 2 (07:32):
Now, if if you are, if Dragon are here, I
use fat as an example. If if if you were
like Dragon once was, and you weighed you know in
excess of three hundred pounds, but you were being considered
for a job in which that weight was a detriment
or prevented you from doing your job, then you may
(07:53):
not have a case.
Speaker 1 (07:55):
But what does.
Speaker 2 (07:58):
Who you sleep with or have sex with have to
do with your being an administrator? Sexual orientation has nothing
to do with it. And Title seven says that you
cannot discriminate based on those protected traits like sex or
sexual orientation. And the Supreme Court has said that this
(08:18):
applies to everyone. It applies to minority groups like racial
minorities or LGBTQ plus or whatever the acronym is now,
and majority groups white white people or straight people. You
go back to nineteen seventy six and twenty twenty, there
(08:40):
were two cases McDonald versus Santa Fe Trail Boss Stock
versus Clayton County. Those two cases confirmed that discrimination against
any way anyone based on those traits, your race, or
your sexual preferences is illegal. How then, why is this
(09:02):
case even before the court because we have two previous
cases that confirmed the discrimination against anyone based on those
traits is illegal. Well, because to prove your discrimination or
Title seven, the courts were using a process called the
McDonald Douglas framework that comes from a nineteen seventy three case.
(09:23):
And here's how that framework works. If you're the employee,
you first have to show basic discrimination. In other words,
you have showed that you were qualified for a job,
you didn't get it, and somebody who had a different
protected trait did get the job. So once you get
that first hurdle passed, then the employer then has to
(09:47):
give a non discriminatory reason for their decision. Example, the
other person was more qualified, which is what they would
usually do. Oh I didn't I didn't know that a
Rod was of lesbian and so you know, we gave
the job to a Rock. Now of course you knew
A Rod doesn't lasbian, so of course you gave the
job because you were at lesbian two. But they got
(10:08):
away with it by oh, well, a Rob was just
more qualified when we really know the truth that A
Rod's really not qualified for much of anything, which is
a sad part, but that's beside the point I wouldn't
see if he was awake. The employee can then argue
that your employer's reason is fake or not believable. So
(10:32):
those are the three steps that from that stupid McDonald
Douglas case that you had to go through in order
to win your discriminication discrimination case. Now, there were some courts,
like the Sixth Circuit, which does cover Ohio, they added
an extra.
Speaker 1 (10:48):
Step for majority group members, like aims the woman in
this case.
Speaker 2 (10:55):
Those courts required the plaintiffs, the people were suing for discrimination,
to show background circumstances.
Speaker 1 (11:04):
What does that mean you.
Speaker 2 (11:06):
Had to show You had to prove extra evidence that
the employer is the unusual type that discriminates against the
majority straight people. Well, that could mean showing that the
decision makers were part of a minority group like you know,
all the decision makers were lesbians, for example, or that
the employer had a pattern of discriminating against the majority. Well,
(11:30):
her case got thrown out in the lower courts because
she couldn't meet that background circumstance requirement, and the Sixth
Circuit agreed with the lower court, saying that she didn't
provide enough evidence to show that the Department of Youth
Services was likely to discriminate against straight people. Now here's
(11:51):
why it matters. It matters because she was arguing that
this extra rule itself was unfair, that the extra rule.
The McDonald rule made it harder for majority group members
to prove discrimination compared to those minority group members, even though,
if you remember what I said at the very beginning,
(12:11):
Title seven is supposed to treat everybody equally. So now
you have what's called a circuit split. Different federal appeals courts,
different rules. Some, like the Sixth Circuit, used all those
background circumstances tests, others didn't use that test. That was
the inconsistency that led the Court to say, you know what,
(12:32):
we need to take this case and settle it. That's
why I've kind of been pissed off about a couple
of gun cases, particularly involving the AR fifteen that the
Court did not take because it's just as Kevanaugh said, well,
there's some circuits out there they're still deciding it. Well,
I don't think it is a general rule of the
(12:55):
court that and I'm going to use the word ripe here,
but all you lawyers don't have a heart attack. I
don't mean ripe in the legal sense. I mean it
has fully jelled. Kevinaugh is saying in the gun cases
that I don't want to hear those cases yet because
we're still waiting for some rulings from some of the
other circuits. Well, I argue that that tradition of the
(13:19):
Court for waiting until everything is ripe, until everybody's decided,
until you have a certain conflict between the appellate courts
is sometimes immterial when the basic foundational question, particularly about guns,
is whether or not there is a constitutional right to
keep them bear arms. I don't care what the Tenth
(13:42):
Circuit says versus the Ninth Circuit or the First Circuit.
I just know that it is an issue that is
purely constitutional in the Court und decided. But that's I digress.
So yesterday the Supreme Court ruled unanimously nine to zero
in favor of as as I said. Associate Justice Jackson
(14:05):
wrote the opinion, and Thomas, joined by Gorsuch, wrote concurring opinions.
Here's what they said, in plain terms, this is just
as plain as I can put it. They said, the
Sixth Circuits rule requiring majority group members to show this
extra evidence does not match the text or the purpose
(14:31):
of Title seven. Now here's what blows my mind. They
were actually arguing as textualists. They were looking at the
plain meaning of Title seven, which I say, for those
so called liberal justices, hallelujah, you kind of got it
(14:52):
on this one. Now, don't get too excited, because I'm
sure they'll backtrack somewhere else. But at least in this case,
they actually read the statute and said, wait a minute,
just read what these words say.
Speaker 1 (15:02):
And you take the plate meaning of the words.
Speaker 2 (15:04):
It says discrimination based on protected traits is illegal, period,
whether the person is in a minority or a majority group,
whether you're gay or straight, or whether you're black or
white or whatever, it doesn't make any difference. It just
says that you cannot discriminate. And then they rule that
it creates an unfair double standard where it makes it
(15:27):
actually harder for white, straight people to bring discrimination claims,
and that goes against the idea of equal protection under
the law.
Speaker 1 (15:40):
You know, another way to look at it is this.
Speaker 2 (15:43):
Speaking of equal protection, this is also about reverse discrimination,
because what was really happening here is that the lesbian
supervisor who went on to hire other lesbians, I mean
that in of itself was probably discrimination, and then denied
her the promotion, gave it to a lesbian, and then
(16:07):
demoted her and replaced her with a gay man. Seems
that are supervisor was engaging in reverse discrimination against a
straight white woman. So the bottom line is Title seven
applies to everybody equally. The McDonald framework that test I
(16:29):
told you that some of these circuits went through is
might be enough to handle discrimination cases because it already
requires plainness to show evidence of discrimination and the employers
can defend themselves by giving legitimate reasons.
Speaker 1 (16:47):
But there is no need under the.
Speaker 2 (16:49):
McDonald Douglas framework to go through an extra hurdle if
you happen to be a straight white person. The background
and circumstances tests assume that majority group discrimination is rare,
so plainers had to go to this unusual steps to
prove this additional discrimination, and the court said that assumption
(17:11):
is not supported by Title seven and you can't use
the block valid claims. Now, what was interesting, at least
from my point, I want to make this interesting to
you too. They had oral arguments on February twenty six
justices Justices like Sodomayor and Brown Jackson question why majority
(17:31):
group members had to jump through extra hoots, and in
the oral arguments they even noted that this woman had
a long employment history positive reviews, and so they thought
there was something suspicious about her demotion and rejection for promotion.
I know a lot of people, at least in some
(17:52):
of the commentary that I heard yesterday, people were shocked. Well,
we'll get to some stats in a minute about how
the court generally splits on decisions, and you'll see that
nine to zero is not that unusual. It's just that
the decisions where they usually split sixty three seven to
(18:15):
two are generally the high profile cases. I think this
is a high profile case. This is a huge case
in my opinion, because this decision ensures that everybody, whether
you're a majority or a minority, that the same rules
(18:36):
for proving discrimination under Title seven apply to everyone equally.
And you can't develop the courts or legislatures or Congress. Well,
I guess Congress could if they wanted to, but I
think they would still have an equal protection problem. Can't
start imposing additional requirements. So that levels the playing field,
(18:58):
and it upholds the idea in this country and under
Title seven, that everybody gets equal treatment. This case directly
affects twenty states and the District of Columbia where courts
were using those background circumstances rule that whole thing that
(19:19):
you go through to see. Well, okay, well, how are
they prone to do it? And how many people are
gay or straight?
Speaker 3 (19:26):
No?
Speaker 2 (19:27):
No, Now, the courts must use the same standard for
everybody when it comes to discrimination cases. But let's talk
about reverse discrimination claims for a moment, because a reverse
discrimination claim that is a claim by a majority group,
someone like me, a white guy, a white straight guy,
(19:47):
who say that we're unfairly treated because of our status
as straight white men or straight white women. Now there's
been a real increase in those claims recently, especially after
a decision by the same court in twenty twenty three
that banned race based affirmative action in colleges standards for
(20:10):
Pharaoh Missions versus Harvard. Oh there's Harvard again. So by
removing this extra hurdle, the Supreme Court has now made
it easier for straight white men, straight white women, or
just any majority group to bring these claims, and that
could lead to more lawsuits. Are going to challenge all
these stupid workplace policies, especially as those that are tied
(20:35):
to what.
Speaker 1 (20:37):
Diversity, equity and inclusion programs.
Speaker 2 (20:41):
Without naming any company in particular, DEI and a C
suite that is decidedly left leaning and is always bending
the new toward minority groups. This is going to cause
(21:05):
some of those companies to be pretty damn careful when
it comes to how they treat their workers, as it
should be. So this case comes at a time when
these DEI programs are under I think legitimate scrutiny. Now
(21:28):
there's some companies McDonald's, Walmart, for example, they're scaling back
their DEI efforts, and obviously the Trump administration is targeting
federal DEI initiatives.
Speaker 1 (21:40):
So while the ruling does.
Speaker 2 (21:41):
Not directly outlaw DEI programs, what it's probably going to
do I think both intended and unintended consequences here. Are
you going to see more lawsuits claiming that these stupid
DEI programs discriminate against majority groups. So just looking to
(22:04):
see if anybody's listening. Employers are going to have to
ensure that their policies are fair and based on non
discriminatory reasons, and for some companies that means they're going
to have to change the way they do business. And
I think it's about damn time. It's always been a
(22:25):
bugaboo of me about diversity, equity inclusion because it wasn't
about inclusion. It was actually about exclusion. It wasn't about diversity,
it was about reverse discrimination. And you know how I
feel about equity, it's not This country is not about equity.
Equity is pure unadulterated socialism. So this decision is going
(22:49):
to reinforce that the Civil Rights Act of nineteen sixty four,
particular Title seven of it, is going to remain color blind,
and for that matter, is going to be sexually blind too,
and religiously blind, because now some cases may have to
pop up and the court's going to which drives me
not because the Court could have, in the opinion, broadened
(23:13):
it out to everything, but at least by saying it's
going to have to be color blind and apply equally
to everyone, that might be good enough. And that aligns
with the equal protection clause of the Fourteenth Amendment, which,
if you recall, guarantees equal treatment under the law, which
is one of the foundational principles of this country. And
(23:36):
of course, you know, from a practical point of view,
it resolves a split among the different appellate courts, creating
a consistent national standard for these discrimination claims under the
Civil Rights Act.
Speaker 1 (23:48):
In nineteen sixty four.
Speaker 2 (23:51):
So now, but you may think that's the end of
the story, but it's not, because now her case has
to go back to the lower courts and they'll have
to you evaluate it without the background circumstances rule. She'll
still need to prove her discrimination claim using the standard
McDonnell douglas process, and the Department of Youth and Services
(24:12):
will still have a chance to defend their decisions, but
they're going to have to do all of that within
this new framework that everything is going to is going
to be essentially color blind and sexually preference blind, and
for that matter, of religious blind. And I think she'll
win in the lower courts. In fact, if I were
the Department of Youth and Services, I'd be busily scrambling
(24:35):
trying to make a deal with her that would reinstate her,
give her a promotion, give her some back pay, and
get rid of this stupid thing. But I point out
again that the sixth Circuit, which covers let me see
if I can remember this, Ohio, Michigan, Kentucky, and I
think Tennessee and the other circuits that use this rule,
(24:57):
they're going to stop using the rule that ind of
itself could lead to more discrimination cases moving forward, especially
from straight white people.
Speaker 1 (25:08):
Hallelujah, we're finally.
Speaker 2 (25:11):
Getting closer to the point where equal protection under the
law actually means equal protection under the law, and we
don't give a rats ask what your religion is, or
what your sexual preferences are, or what your skin color is,
or what church or synagogue or mosque you go to.
We're going to treat everybody equally. So now employers moving forward, now,
(25:38):
in this case, I would say, especially public employers like
the Department of Youth Services in Ohio, are probably going
to face a lot more lawsuits. So they're going to
have to start carefully documenting they're hiring and promotion decisions
in order to avoid claims of discrimination. So just in
terms of the big picture, just imagine you're at work
(26:00):
and you think that you run fairly passed over for
promotion or you got fired because of who you are,
maybe because of your race, your sex, your sexual orientation.
And remember this this works every way because now it
applies to everybody. So whether you're gay or straight, or
by or whatever else letter you are in the in
the acronym, or whatever color you may be, you know
(26:20):
you're you're you're Negroid, you're Caucasian, you're mongoloid, or you're
all of the other subsets that are not really racist.
But you know, now because you're they claim that, you know,
you're Southeast Asian, or you're Asian, or you're a Hispanic,
or you're really Cuban or whatever.
Speaker 1 (26:37):
You know, No, none of that that matters anymore. Title
seven is a law.
Speaker 2 (26:42):
That says that's not okay, and it protects everybody, whether
you're in a minority group or not. So ms Aimes
this straight woman that feels like she was treated unfairly
at the job because she wasn't promoted and then she
was devoted with those roles going to people with different
sexual preferences.
Speaker 1 (27:02):
She sues.
Speaker 2 (27:03):
The court says she had to provide the extra evidence
because she's a part of the majority group, and now boom,
that's gone. That's just not fair of the court said,
the extra rule was thrown out, and now she gets
another chance to go prove her case, but she now
(27:23):
gets to prove her case on an equal status, an
equal basis, and this decision is going to make it
easier for people in majority groups to sue for discrimination,
which is obviously going to mean probably going to mean
more litigation, but that's just the nature of our society,
but especially about workplace diversity programs. And I think this
(27:46):
case and this opinion serves as a reminder that the
law is supposed to treat everybody equally, regardless or as
some idiots would say, irregardless of their backgrounds, the religious background,
they're sexual background, their their racial background, none of that matters.
This is a great leap this is a great leap forward.
(28:09):
And the fact that I'm saying all of that and
it's the nine to zero decision, and Justice Jackson Brown
wrote the opinion, who I think is probably one of
the least smart people on the court, says a lot.
And of course Clarence Thomas and Neil Gorsutch never fail
to uh prove their metal when it comes to these
(28:32):
kinds of cases. They're they're they're concurring opinion is a
true work of art.
Speaker 3 (28:37):
Now let's talk.
Speaker 1 (28:38):
About nine to zero. What does that really mean? That's next.
Speaker 2 (28:41):
You're now over here on the poverty stricken side of
the building and with just us ordinary real Americans, and
you know, they they know that you're, you know, a snobby,
you know, too good for us kind of guy.
Speaker 3 (28:57):
I take back all the compliments I gave you.
Speaker 4 (28:59):
I said, the reasons why you're not getting talkbacks quality radio,
starting off with the D Day coverage and the remembrance
and all of what comes with that, are so enamored.
Speaker 1 (29:09):
Let me just my head is getting Yeah.
Speaker 4 (29:11):
I think people are so enamored with the quality radio
that they're locked in so much so talkback doesn't even
come to their brain.
Speaker 3 (29:19):
Well they just but I take all that back because.
Speaker 2 (29:21):
Or they just paddled their heads on the kitchen table
and just knocked themselves out with the insanity.
Speaker 3 (29:26):
Well they're already knocked out.
Speaker 1 (29:27):
It's Friday, so you know that's true too. It's true too.
Speaker 2 (29:30):
And they're too busy waiting for taxpayer relief shots. That's
all they care about.
Speaker 3 (29:34):
One hour, eight minutes, but count.
Speaker 2 (29:36):
All they want to hear is just you know, they
would hear boom boom boom, didnine won one calls?
Speaker 1 (29:41):
That's all they want to hear.
Speaker 3 (29:42):
They want to see their tax dollars.
Speaker 1 (29:46):
Being said.
Speaker 3 (29:46):
An eight minute.
Speaker 1 (29:49):
Uhous.
Speaker 2 (29:51):
Unanimous decisions in the Supreme Court are usually in these
kind of technical, non controversial cases, like you know, they're
interpreting a statute or something. But sometimes, you know, there's
always the exception. It could be significant rulings like you know,
the FDA versus the Alliance for Hippocratic Medicine. That's a
case from last year. But ninety zero doesn't necessarily indicate
(30:14):
that the case is easy, because really complex legal questions
can actually lead to legal consensus. I know, the old
joke is, you know you can ask you know, ten
lawyers an opinion about something, you get ten different opinions,
so unanimous to say, I'll give you some stats in
just this minute. But think about a six to three decision,
(30:37):
which for me is kind of the most common, And
that's the dominant split in cases that are ideologically charged.
And I think that's become more true since twenty twenty.
When you've got the conservative majority, you've got Elito, Gorsuch, Kavanaugh,
Barrett and sometimes Baron, sometimes Roberts. They're almost always a
(30:59):
lot against the liberal justices, so to my Oor, Kagan
and Jackson, and that's where you get the six to
three decision. But you also have seven to two decisions.
You got eight to one splits, and those are usually
cases where just one or two justice justices will cross
an ideological line, and most usually it's like Justice Roberts,
(31:22):
who will join the liberals or maybe Kavanaugh join the liberals.
And don't get me wrong, so to my Ore has
done it on many times where she is aligned with
the conservatives. Now, those almost equal splits five to four,
they're less common, and that's probably because of the conservative
majority's strength, particularly since twenty twenty.
Speaker 1 (31:47):
But the exact let's see.
Speaker 4 (31:50):
And.
Speaker 2 (31:51):
Let's say from twenty one twenty twenty twenty twenty four,
unanimous decisions have ranged from it looks about like anywhere
from twenty nine to almost fifty percent in the last term,
a historical average of forty to fifty percent. So see
unanimous decisions. Will everybody find, oh my gosh, it's a
(32:13):
unanimous decision. They're not really that unusual. It's just that
this happens to be a fairly high profile case.
It's good to law school.
Speaker 2 (00:02):
Because we're in that season where we're going to start
getting a lot of Supreme Court cases. And I know
we got a gun case. And I'll get to the
gun case probably either on the nationally syndicated program tomorrow
or on Monday, just depends on what I got to
do tomorrow.
Speaker 1 (00:20):
We'll see. But today I.
Speaker 2 (00:22):
Want to talk about a case called Ames versus Ohio
Department of Youth Services. It was decided yesterday. One of
the things that I want you to think about to
give you a little perspective as I go through this
case and what happened. I want you to pay attention,
particularly in the as I described the facts of the case,
(00:46):
the underlying facts of how did this case, what does
it involve? I want you to think about. I want
you to pay attention to some of the dates because
when you realize that it's twenty five and we're talking
about things that may have taken a place in without
(01:07):
giving you a year yet, you'll realize just how long
it takes for a case to work gets way through.
Sometimes you have to go through the administrative procedures, so
you might have to go to you know, the Equal
Employment Opportunity Commission, and then you have to you know,
once you go through all of that process, then you
(01:27):
have to go through the trial court. Then you have
to go through the appellate courts, and then hopefully maybe
the Supreme Court will take your case, but not always,
and that takes time.
Speaker 1 (01:39):
So this case is about whether.
Speaker 2 (01:41):
People who belong to what's called a majority group, and
in this case, let's talk about straight people or white people.
Straight white people, Yeah, straight white people, whether or not
straight white people or majority groups like that, have to
meet an extra requirement to prove discrimination in the workplace
(02:07):
under Title seven of the Civil Rights Act of nineteen
sixty four. Was that law due that law bans discrimination
at work based on things like everything. You know, we
talk about this a lot based on race, sex, religion,
or sexual orientation. Now, I've always believed that discrimination at
(02:29):
its heart is about immutable characteristics race, sex, religion, even religion.
Speaker 1 (02:41):
You might begin to think that, Michael, that's.
Speaker 2 (02:44):
Not really immutable, because I know Protestants who have converted
to Catholicism or vice versa. I know Jews have converted
to Christendom and Christians have converted to Judy. Some people
end up becoming Buddhists, whatever. So religion may not be
(03:05):
an immutable characteristic, and sexual orientation that opens up a
whole can of worms. Are you born gay, straight by
whatever you see? Who knows? But any regardless of what
we may think about it. I think about discrimination in
terms of immutable characteristics, particularly race and sex. But the
(03:30):
Civil Rights Act, Title seven, the Civil Rights Acts in
nineteen sixty four says you cannot discriminate based on race, sex, religion,
or sexual orientation. So this particular case, the Aims case,
focused on a rule called the background circumstances test. That's
(03:50):
what some courts use in order to make it more
difficult for straight white people or these majority group people
to prove that they had been discriminated against. The Court
unanimously nine to zero struck down that rule. Kaitanji Brown Jackson,
(04:15):
or as I like to call her, Jackson, Brown wrote
the majority opinion. Now Clarence Thomas, joined by Justice Gore Sutch,
they both wrote concurring opinions, but they wrote concur Well,
I'll explain why they wrote concurring opinions in the minute.
So the people involved are Marlene Marlenne. I'm not quite
(04:41):
sure any pronouncer named Aimes. This is a heterosexual, straight woman.
I know that's redundant, but I'm going to emphasize straight
the vernacular. A straight woman that worked for the Ohio
Department of Youth Services since two thousand and four. She
was promoted to a management role in an administrator's role
(05:04):
in twenty fourteen, but after she got a new supervisor
in twenty seventeen, she started having problems. This case also
involves the Ohio Department of Youth Services. That's her employer,
that's the agency that runs programs for youth in Ohio.
Speaker 1 (05:28):
So what did she claim?
Speaker 2 (05:30):
She claimed that she was discriminated against that work because
she's a straight, white woman, in particular because she's a
straight woman. She claimed that she was denied a promotion
and that she was actually demoded, with those roles given
to a lesbian woman and a gay man, respectively. So
(05:51):
what happened to her? Here's what you need to know
in two is why I want you to pay attention
to the dates. It's twenty twenty five. The first thing
that happened to her was in two thy seventeen, eight years.
Speaker 1 (06:09):
Ago, she got a new supervisor.
Speaker 2 (06:14):
Jeanine or something trim. She's a lesbian. In twenty nineteen,
six years ago, ms Ames applied for promotion. She wanted
to be the bureau chief of quality. She didn't get
that job. It went to a coworker who was lesbian. Now,
(06:35):
remember she got a new supervisor in twenty seventeen, it
was a lesbian. In twenty nineteen, she applied for a
promotion and that she didn't get because her supervisor, who's
a lesbian, gave the job to a coworker who.
Speaker 1 (06:50):
Was also a lesbian.
Speaker 3 (06:52):
It was at Beehive a lesbianism'm.
Speaker 2 (06:55):
And then after that she got demoted from her administrator
rook administrator role and her job was then given to
a twenty five year old gay guy. And that demotion
came with the pay cut. You don't think this one
was pissed off. Of course you'd be pissed off. This
(07:15):
is why I this is why I emphasize in as
much as I can about how it's it's all about
your knowledge, your skills, and your abilities.
Speaker 1 (07:29):
Everything else is irrelevant.
Speaker 2 (07:32):
Now, if if you are, if Dragon are here, I
use fat as an example. If if if you were
like Dragon once was, and you weighed you know in
excess of three hundred pounds, but you were being considered
for a job in which that weight was a detriment
or prevented you from doing your job, then you may
(07:53):
not have a case.
Speaker 1 (07:55):
But what does.
Speaker 2 (07:58):
Who you sleep with or have sex with have to
do with your being an administrator? Sexual orientation has nothing
to do with it. And Title seven says that you
cannot discriminate based on those protected traits like sex or
sexual orientation. And the Supreme Court has said that this
(08:18):
applies to everyone. It applies to minority groups like racial
minorities or LGBTQ plus or whatever the acronym is now,
and majority groups white white people or straight people. You
go back to nineteen seventy six and twenty twenty, there
(08:40):
were two cases McDonald versus Santa Fe Trail Boss Stock
versus Clayton County. Those two cases confirmed that discrimination against
any way anyone based on those traits, your race, or
your sexual preferences is illegal. How then, why is this
(09:02):
case even before the court because we have two previous
cases that confirmed the discrimination against anyone based on those
traits is illegal. Well, because to prove your discrimination or
Title seven, the courts were using a process called the
McDonald Douglas framework that comes from a nineteen seventy three case.
(09:23):
And here's how that framework works. If you're the employee,
you first have to show basic discrimination. In other words,
you have showed that you were qualified for a job,
you didn't get it, and somebody who had a different
protected trait did get the job. So once you get
that first hurdle passed, then the employer then has to
(09:47):
give a non discriminatory reason for their decision. Example, the
other person was more qualified, which is what they would
usually do. Oh I didn't I didn't know that a
Rod was of lesbian and so you know, we gave
the job to a Rock. Now of course you knew
A Rod doesn't lasbian, so of course you gave the
job because you were at lesbian two. But they got
(10:08):
away with it by oh, well, a Rob was just
more qualified when we really know the truth that A
Rod's really not qualified for much of anything, which is
a sad part, but that's beside the point I wouldn't
see if he was awake. The employee can then argue
that your employer's reason is fake or not believable. So
(10:32):
those are the three steps that from that stupid McDonald
Douglas case that you had to go through in order
to win your discriminication discrimination case. Now, there were some courts,
like the Sixth Circuit, which does cover Ohio, they added
an extra.
Speaker 1 (10:48):
Step for majority group members, like aims the woman in
this case.
Speaker 2 (10:55):
Those courts required the plaintiffs, the people were suing for discrimination,
to show background circumstances.
Speaker 1 (11:04):
What does that mean you.
Speaker 2 (11:06):
Had to show You had to prove extra evidence that
the employer is the unusual type that discriminates against the
majority straight people. Well, that could mean showing that the
decision makers were part of a minority group like you know,
all the decision makers were lesbians, for example, or that
the employer had a pattern of discriminating against the majority. Well,
(11:30):
her case got thrown out in the lower courts because
she couldn't meet that background circumstance requirement, and the Sixth
Circuit agreed with the lower court, saying that she didn't
provide enough evidence to show that the Department of Youth
Services was likely to discriminate against straight people. Now here's
(11:51):
why it matters. It matters because she was arguing that
this extra rule itself was unfair, that the extra rule.
The McDonald rule made it harder for majority group members
to prove discrimination compared to those minority group members, even though,
if you remember what I said at the very beginning,
(12:11):
Title seven is supposed to treat everybody equally. So now
you have what's called a circuit split. Different federal appeals courts,
different rules. Some, like the Sixth Circuit, used all those
background circumstances tests, others didn't use that test. That was
the inconsistency that led the Court to say, you know what,
(12:32):
we need to take this case and settle it. That's
why I've kind of been pissed off about a couple
of gun cases, particularly involving the AR fifteen that the
Court did not take because it's just as Kevanaugh said, well,
there's some circuits out there they're still deciding it. Well,
I don't think it is a general rule of the
(12:55):
court that and I'm going to use the word ripe here,
but all you lawyers don't have a heart attack. I
don't mean ripe in the legal sense. I mean it
has fully jelled. Kevinaugh is saying in the gun cases
that I don't want to hear those cases yet because
we're still waiting for some rulings from some of the
other circuits. Well, I argue that that tradition of the
(13:19):
Court for waiting until everything is ripe, until everybody's decided,
until you have a certain conflict between the appellate courts
is sometimes immterial when the basic foundational question, particularly about guns,
is whether or not there is a constitutional right to
keep them bear arms. I don't care what the Tenth
(13:42):
Circuit says versus the Ninth Circuit or the First Circuit.
I just know that it is an issue that is
purely constitutional in the Court und decided. But that's I digress.
So yesterday the Supreme Court ruled unanimously nine to zero
in favor of as as I said. Associate Justice Jackson
(14:05):
wrote the opinion, and Thomas, joined by Gorsuch, wrote concurring opinions.
Here's what they said, in plain terms, this is just
as plain as I can put it. They said, the
Sixth Circuits rule requiring majority group members to show this
extra evidence does not match the text or the purpose
(14:31):
of Title seven. Now here's what blows my mind. They
were actually arguing as textualists. They were looking at the
plain meaning of Title seven, which I say, for those
so called liberal justices, hallelujah, you kind of got it
(14:52):
on this one. Now, don't get too excited, because I'm
sure they'll backtrack somewhere else. But at least in this case,
they actually read the statute and said, wait a minute,
just read what these words say.
Speaker 1 (15:02):
And you take the plate meaning of the words.
Speaker 2 (15:04):
It says discrimination based on protected traits is illegal, period,
whether the person is in a minority or a majority group,
whether you're gay or straight, or whether you're black or
white or whatever, it doesn't make any difference. It just
says that you cannot discriminate. And then they rule that
it creates an unfair double standard where it makes it
(15:27):
actually harder for white, straight people to bring discrimination claims,
and that goes against the idea of equal protection under
the law.
Speaker 1 (15:40):
You know, another way to look at it is this.
Speaker 2 (15:43):
Speaking of equal protection, this is also about reverse discrimination,
because what was really happening here is that the lesbian
supervisor who went on to hire other lesbians, I mean
that in of itself was probably discrimination, and then denied
her the promotion, gave it to a lesbian, and then
(16:07):
demoted her and replaced her with a gay man. Seems
that are supervisor was engaging in reverse discrimination against a
straight white woman. So the bottom line is Title seven
applies to everybody equally. The McDonald framework that test I
(16:29):
told you that some of these circuits went through is
might be enough to handle discrimination cases because it already
requires plainness to show evidence of discrimination and the employers
can defend themselves by giving legitimate reasons.
Speaker 1 (16:47):
But there is no need under the.
Speaker 2 (16:49):
McDonald Douglas framework to go through an extra hurdle if
you happen to be a straight white person. The background
and circumstances tests assume that majority group discrimination is rare,
so plainers had to go to this unusual steps to
prove this additional discrimination, and the court said that assumption
(17:11):
is not supported by Title seven and you can't use
the block valid claims. Now, what was interesting, at least
from my point, I want to make this interesting to
you too. They had oral arguments on February twenty six
justices Justices like Sodomayor and Brown Jackson question why majority
(17:31):
group members had to jump through extra hoots, and in
the oral arguments they even noted that this woman had
a long employment history positive reviews, and so they thought
there was something suspicious about her demotion and rejection for promotion.
I know a lot of people, at least in some
(17:52):
of the commentary that I heard yesterday, people were shocked. Well,
we'll get to some stats in a minute about how
the court generally splits on decisions, and you'll see that
nine to zero is not that unusual. It's just that
the decisions where they usually split sixty three seven to
(18:15):
two are generally the high profile cases. I think this
is a high profile case. This is a huge case
in my opinion, because this decision ensures that everybody, whether
you're a majority or a minority, that the same rules
(18:36):
for proving discrimination under Title seven apply to everyone equally.
And you can't develop the courts or legislatures or Congress. Well,
I guess Congress could if they wanted to, but I
think they would still have an equal protection problem. Can't
start imposing additional requirements. So that levels the playing field,
(18:58):
and it upholds the idea in this country and under
Title seven, that everybody gets equal treatment. This case directly
affects twenty states and the District of Columbia where courts
were using those background circumstances rule that whole thing that
(19:19):
you go through to see. Well, okay, well, how are
they prone to do it? And how many people are
gay or straight?
Speaker 3 (19:26):
No?
Speaker 2 (19:27):
No, Now, the courts must use the same standard for
everybody when it comes to discrimination cases. But let's talk
about reverse discrimination claims for a moment, because a reverse
discrimination claim that is a claim by a majority group,
someone like me, a white guy, a white straight guy,
(19:47):
who say that we're unfairly treated because of our status
as straight white men or straight white women. Now there's
been a real increase in those claims recently, especially after
a decision by the same court in twenty twenty three
that banned race based affirmative action in colleges standards for
(20:10):
Pharaoh Missions versus Harvard. Oh there's Harvard again. So by
removing this extra hurdle, the Supreme Court has now made
it easier for straight white men, straight white women, or
just any majority group to bring these claims, and that
could lead to more lawsuits. Are going to challenge all
these stupid workplace policies, especially as those that are tied
(20:35):
to what.
Speaker 1 (20:37):
Diversity, equity and inclusion programs.
Speaker 2 (20:41):
Without naming any company in particular, DEI and a C
suite that is decidedly left leaning and is always bending
the new toward minority groups. This is going to cause
(21:05):
some of those companies to be pretty damn careful when
it comes to how they treat their workers, as it
should be. So this case comes at a time when
these DEI programs are under I think legitimate scrutiny. Now
(21:28):
there's some companies McDonald's, Walmart, for example, they're scaling back
their DEI efforts, and obviously the Trump administration is targeting
federal DEI initiatives.
Speaker 1 (21:40):
So while the ruling does.
Speaker 2 (21:41):
Not directly outlaw DEI programs, what it's probably going to
do I think both intended and unintended consequences here. Are
you going to see more lawsuits claiming that these stupid
DEI programs discriminate against majority groups. So just looking to
(22:04):
see if anybody's listening. Employers are going to have to
ensure that their policies are fair and based on non
discriminatory reasons, and for some companies that means they're going
to have to change the way they do business. And
I think it's about damn time. It's always been a
(22:25):
bugaboo of me about diversity, equity inclusion because it wasn't
about inclusion. It was actually about exclusion. It wasn't about diversity,
it was about reverse discrimination. And you know how I
feel about equity, it's not This country is not about equity.
Equity is pure unadulterated socialism. So this decision is going
(22:49):
to reinforce that the Civil Rights Act of nineteen sixty four,
particular Title seven of it, is going to remain color blind,
and for that matter, is going to be sexually blind too,
and religiously blind, because now some cases may have to
pop up and the court's going to which drives me
not because the Court could have, in the opinion, broadened
(23:13):
it out to everything, but at least by saying it's
going to have to be color blind and apply equally
to everyone, that might be good enough. And that aligns
with the equal protection clause of the Fourteenth Amendment, which,
if you recall, guarantees equal treatment under the law, which
is one of the foundational principles of this country. And
(23:36):
of course, you know, from a practical point of view,
it resolves a split among the different appellate courts, creating
a consistent national standard for these discrimination claims under the
Civil Rights Act.
Speaker 1 (23:48):
In nineteen sixty four.
Speaker 2 (23:51):
So now, but you may think that's the end of
the story, but it's not, because now her case has
to go back to the lower courts and they'll have
to you evaluate it without the background circumstances rule. She'll
still need to prove her discrimination claim using the standard
McDonnell douglas process, and the Department of Youth and Services
(24:12):
will still have a chance to defend their decisions, but
they're going to have to do all of that within
this new framework that everything is going to is going
to be essentially color blind and sexually preference blind, and
for that matter, of religious blind. And I think she'll
win in the lower courts. In fact, if I were
the Department of Youth and Services, I'd be busily scrambling
(24:35):
trying to make a deal with her that would reinstate her,
give her a promotion, give her some back pay, and
get rid of this stupid thing. But I point out
again that the sixth Circuit, which covers let me see
if I can remember this, Ohio, Michigan, Kentucky, and I
think Tennessee and the other circuits that use this rule,
(24:57):
they're going to stop using the rule that ind of
itself could lead to more discrimination cases moving forward, especially
from straight white people.
Speaker 1 (25:08):
Hallelujah, we're finally.
Speaker 2 (25:11):
Getting closer to the point where equal protection under the
law actually means equal protection under the law, and we
don't give a rats ask what your religion is, or
what your sexual preferences are, or what your skin color is,
or what church or synagogue or mosque you go to.
We're going to treat everybody equally. So now employers moving forward, now,
(25:38):
in this case, I would say, especially public employers like
the Department of Youth Services in Ohio, are probably going
to face a lot more lawsuits. So they're going to
have to start carefully documenting they're hiring and promotion decisions
in order to avoid claims of discrimination. So just in
terms of the big picture, just imagine you're at work
(26:00):
and you think that you run fairly passed over for
promotion or you got fired because of who you are,
maybe because of your race, your sex, your sexual orientation.
And remember this this works every way because now it
applies to everybody. So whether you're gay or straight, or
by or whatever else letter you are in the in
the acronym, or whatever color you may be, you know
(26:20):
you're you're you're Negroid, you're Caucasian, you're mongoloid, or you're
all of the other subsets that are not really racist.
But you know, now because you're they claim that, you know,
you're Southeast Asian, or you're Asian, or you're a Hispanic,
or you're really Cuban or whatever.
Speaker 1 (26:37):
You know, No, none of that that matters anymore. Title
seven is a law.
Speaker 2 (26:42):
That says that's not okay, and it protects everybody, whether
you're in a minority group or not. So ms Aimes
this straight woman that feels like she was treated unfairly
at the job because she wasn't promoted and then she
was devoted with those roles going to people with different
sexual preferences.
Speaker 1 (27:02):
She sues.
Speaker 2 (27:03):
The court says she had to provide the extra evidence
because she's a part of the majority group, and now boom,
that's gone. That's just not fair of the court said,
the extra rule was thrown out, and now she gets
another chance to go prove her case, but she now
(27:23):
gets to prove her case on an equal status, an
equal basis, and this decision is going to make it
easier for people in majority groups to sue for discrimination,
which is obviously going to mean probably going to mean
more litigation, but that's just the nature of our society,
but especially about workplace diversity programs. And I think this
(27:46):
case and this opinion serves as a reminder that the
law is supposed to treat everybody equally, regardless or as
some idiots would say, irregardless of their backgrounds, the religious background,
they're sexual background, their their racial background, none of that matters.
This is a great leap this is a great leap forward.
(28:09):
And the fact that I'm saying all of that and
it's the nine to zero decision, and Justice Jackson Brown
wrote the opinion, who I think is probably one of
the least smart people on the court, says a lot.
And of course Clarence Thomas and Neil Gorsutch never fail
to uh prove their metal when it comes to these
(28:32):
kinds of cases. They're they're they're concurring opinion is a
true work of art.
Speaker 3 (28:37):
Now let's talk.
Speaker 1 (28:38):
About nine to zero. What does that really mean? That's next.
Speaker 2 (28:41):
You're now over here on the poverty stricken side of
the building and with just us ordinary real Americans, and
you know, they they know that you're, you know, a snobby,
you know, too good for us kind of guy.
Speaker 3 (28:57):
I take back all the compliments I gave you.
Speaker 4 (28:59):
I said, the reasons why you're not getting talkbacks quality radio,
starting off with the D Day coverage and the remembrance
and all of what comes with that, are so enamored.
Speaker 1 (29:09):
Let me just my head is getting Yeah.
Speaker 4 (29:11):
I think people are so enamored with the quality radio
that they're locked in so much so talkback doesn't even
come to their brain.
Speaker 3 (29:19):
Well they just but I take all that back because.
Speaker 2 (29:21):
Or they just paddled their heads on the kitchen table
and just knocked themselves out with the insanity.
Speaker 3 (29:26):
Well they're already knocked out.
Speaker 1 (29:27):
It's Friday, so you know that's true too. It's true too.
Speaker 2 (29:30):
And they're too busy waiting for taxpayer relief shots. That's
all they care about.
Speaker 3 (29:34):
One hour, eight minutes, but count.
Speaker 2 (29:36):
All they want to hear is just you know, they
would hear boom boom boom, didnine won one calls?
Speaker 1 (29:41):
That's all they want to hear.
Speaker 3 (29:42):
They want to see their tax dollars.
Speaker 1 (29:46):
Being said.
Speaker 3 (29:46):
An eight minute.
Speaker 1 (29:49):
Uhous.
Speaker 2 (29:51):
Unanimous decisions in the Supreme Court are usually in these
kind of technical, non controversial cases, like you know, they're
interpreting a statute or something. But sometimes, you know, there's
always the exception. It could be significant rulings like you know,
the FDA versus the Alliance for Hippocratic Medicine. That's a
case from last year. But ninety zero doesn't necessarily indicate
(30:14):
that the case is easy, because really complex legal questions
can actually lead to legal consensus. I know, the old
joke is, you know you can ask you know, ten
lawyers an opinion about something, you get ten different opinions,
so unanimous to say, I'll give you some stats in
just this minute. But think about a six to three decision,
(30:37):
which for me is kind of the most common, And
that's the dominant split in cases that are ideologically charged.
And I think that's become more true since twenty twenty.
When you've got the conservative majority, you've got Elito, Gorsuch, Kavanaugh,
Barrett and sometimes Baron, sometimes Roberts. They're almost always a
(30:59):
lot against the liberal justices, so to my Oor, Kagan
and Jackson, and that's where you get the six to
three decision. But you also have seven to two decisions.
You got eight to one splits, and those are usually
cases where just one or two justice justices will cross
an ideological line, and most usually it's like Justice Roberts,
(31:22):
who will join the liberals or maybe Kavanaugh join the liberals.
And don't get me wrong, so to my Ore has
done it on many times where she is aligned with
the conservatives. Now, those almost equal splits five to four,
they're less common, and that's probably because of the conservative
majority's strength, particularly since twenty twenty.
Speaker 1 (31:47):
But the exact let's see.
Speaker 4 (31:50):
And.
Speaker 2 (31:51):
Let's say from twenty one twenty twenty twenty twenty four,
unanimous decisions have ranged from it looks about like anywhere
from twenty nine to almost fifty percent in the last term,
a historical average of forty to fifty percent. So see
unanimous decisions. Will everybody find, oh my gosh, it's a
(32:13):
unanimous decision. They're not really that unusual. It's just that
this happens to be a fairly high profile case.
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