A lesbian woman secured the position for which Ames had applied, while a gay man was placed in her previous job. Ames is a straight woman. Ames then filed a lawsuit under Title VII of the 1964 Civil Rights Act, alleging discrimination because of her sex and sexual orientation.

“I’ve worked 30-plus years to get the knowledge, skills and ability to be where I was.” Ames said while testifying during one of her lower-court hearings. “I want to feel whole again.”

The 6th Circuit Court of Appeals dismissed Ames’ first sex discrimination claim and held that Ames had not fulfilled her burden of proof in arguing her second allegation about sexual orientation discrimination.

At issue before the high court is whether the lower court held Ames to a higher burden of proof by requiring her to provide evidence, referred to as “background circumstances,” that the defendant acted as an “unusual employer” in discriminating against the majority.

Ohio Solicitor General Elliot Gaiser, representing the defense, argued that the “background circumstances” requirement is not a higher burden, but simply a different one compared to the standard for minority-group plaintiffs.

Repeatedly stating the importance that all plaintiffs are held to the same standard, Gaiser’s arguments teetered on siding with Ames.

Laughing on the bench, Justice Neil Gorsuch exclaimed, “We’re in radical agreement today on that, it seems to me! Counsel before us seem to be in total agreement.”

When commencing a Title VII lawsuit, most plaintiffs must present evidence that demonstrates unfair discrimination before the case goes to trial, a practice known as a prima facie requirement.

This information typically includes proof of belonging to a minority, qualification for a certain job despite being denied for the position and continuous efforts from the employer to solicit applicants with similar qualifications as the plaintiff.

Four out of the 13 appellate courts currently require a plaintiff from a majority group who claims discrimination to demonstrate “background circumstances” to bolster his or her case. Circuit judges dismissed Ames’ cases, stating that she did not meet this requirement.

Justice Elena Kagan seemed perplexed by the argument that the requirement did not hold Ames to a higher standard, referencing the lower court’s opinion that suggested that if Ames were part of a minority group, the evidence she brought forth would have been enough to establish the legitimacy of her case.

Gaiser said his counsel was “not defending the exact language” of the lower court’s decision.

Kagan said that Gaiser’s somewhat wavering position on the lower court’s ruling presented a “peculiar situation.” “I don’t exactly know what to make of this,” she said.

In response to the discrimination lawsuit, many legal organizations opposed to identity-based policies and programs filed briefs supporting of Ames.

“It is strategically unwise to try to defend the standard just because courts, especially the Supreme Court, have been very, very explicit on the fact that race ought not matter in life,” said William Trachman, an attorney from Mountain States Legal Foundation, which filed a brief on behalf of Ames.

In the respondent’s brief, the Ohio department said that if the court finds that majority-group plaintiffs are, in fact, held to a higher burden of proof under the “background circumstances” requirement, the court should hold all plaintiffs to a higher burden, rather than lower the standards.

During the oral arguments, Ames’ attorney, Xiao Wang, conceded 10 minutes of his time to Assistant to the Solicitor General Ashley Robertson, after the Biden administration submitted a brief supporting Ames.

“That heightened standard risks screening out cases with merit and complicates litigation,” Robertson said.

Wang emphasized that a prima facie case only requires a petition to bring forth some amount of evidence that can raise suspicion of discrimination and that more specific evidence may be brought once the case reaches the court.

When Justice Amy Coney Barrett asked Wang if such loose requirements would open the “floodgates” to Title VII lawsuits, Wang replied that the other circuits without the “background circumstances” requirement do not experience that issue.

As the Trump administration axes diversity, equity and inclusion programs, Ames’ appeal marks the first reverse discrimination case to go before the highest court since the president took office last month.

Christopher Barnewolt, an attorney at the Pacific Legal Foundation, which filed a brief supporting Ames, said the question before the court incorrectly assumed that it is “unusual” for majority groups to face discrimination.

“DEI and affirmative action policies are extremely strong evidence against this theory of majority group privilege,” he said. “It’s a very concrete example of people in our society being treated differently based on their background and being given benefits based on minority membership.”

The court is expected to reach its decision in the summer.

“We’re fairly optimistic that almost everyone on both sides of the political aisle here are more or less on the same page,” Barnewolt said when predicting the court would rule in favor of Ames.