Leading Title VII Scholars File Amicus Brief to SCOTUS in Ames v. Ohio

Professors Katie Eyer, Sandra Sperino, and Deborah Widiss are bringing their Title VII expertise to bear in the soon-to-be-argued Supreme Court case Ames v. Ohio. The issue before the Court is whether discrimination plaintiffs who are members of majority groups must show additional “background circumstances” to “support the suspicion that the defendant is that unusual employer who discriminates against the majority.” 

In a collaborative amicus brief filed with Weil, Gotshal & Manges, the trio argue that this rule is part of a string of judicial misinterpretations of Title VII that impermissibly impose additional proof requirements on plaintiffs. These include the “stray remarks” doctrine, the “same actor inference,” the “honest belief” rule, and an array of other judicial elaborations not found in Title VII’s statutory text. These rules, invoked by judges in dismissing cases on summary judgment, draw on their personal intuitions about where and when discrimination is likely to occur.

In Ames v. Ohio, for example, the background circumstances rule draws the inference that, absent unique facts, Ames’s employer was unlikely to discriminate against her, a heterosexual woman, in favor of an LGBT employee. This assumption contravenes the principle that factual questions must be resolved in favor of the non-movant on summary judgement. Ultimately it removes the statutory question – whether the employer’s decision was “because of” the plaintiff’s sex – from the jury’s reasonable deliberation.

This is not the first time that these scholars have applied their scholarship in advocating to the Supreme Court. Professor Eyer’s writing on statutory originalism and LGBT rights played an important role in the Bostock decision, which held that discrimination against a homosexual plaintiff because of sexual orientation is discrimination “because of . . . sex” under Title VII. The joint brief in Ames also invites the Supreme Court to reaffirm this reasoning in Bostock. 

Professor Eyer speaks highly of her collaboration with Weil Gotschal and the value of bringing academic work into the judicial process. “Amicus work can be deeply rewarding, and can allow you to translate your scholarly ideas into real world impact.” She recommends that scholars look for opportunities to file in lower courts where there are comparatively fewer amicus briefs, noting that “such briefs have a particular opportunity to make an impact.”

Arguments in Ames v. Ohio will be held later this month. If the Court is persuaded to reign in judge-made Title VII law, the result will be improved access to jury trials for victims of discrimination.