Are White People a Protected Class Now?

 In a unanimous decision, the Supreme Court signals that the era of affirmative action really has come to an end.

For a year after the 2020 George Floyd riots, America’s largest corporations pretty much stopped hiring white people. According to Bloomberg News, of the over 300,000 new jobs filled at S&P 100 companies in 2021, only six percent—you read that right, six percent—went to whites, who make up some 61 percent of the U.S. population. This was done in the name of “inclusivity” and “diversity.”

Under a major new Supreme Court case decided last week—which you may have missed in the Trump-Musk uproar—a different description now applies to such DEI hiring practices. They can now be called a violation of the country’s race-discrimination laws.

The case, Ames v. Ohio Department of Youth Services, was not on its surface a race case. It involved a straight woman, Melanie Ames, who had worked for the state of Ohio for 30 years, beginning as an assistant and working her way up to program administrator. She then applied for a bureau chief’s position, but according to her appeal papers, her supervisor, a gay woman, gave the job to another gay woman instead.

Ames was demoted to her original job as assistant (at a substantial pay cut) and replaced as program administrator by a gay man. Ames sued under Title VII—the federal statute banning employment discrimination—claiming she’d been discriminated against because she was straight.

The Sixth Circuit Court of Appeals threw out her suit. Straight people, said the court, are a majority, not a minority, and while discrimination against majority groups is not impossible, an employee from a majority group who claims discrimination must overcome a special, initial evidentiary hurdle. Specifically, Ames had to show “background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.” Because Ames had presented no such evidence, she was out of luck.

The Sixth Circuit decision was not an outlier. Four other federal appellate courts had similarly held or suggested that majority-group employees claiming discrimination have to satisfy an evidentiary burden that minorities do not.

But the Supreme Court reversed all that—and it did so unanimously.

Writing for the full Court, Justice Ketanji Brown Jackson held that Title VII protects “individuals,” not groups, and protects “minority and majority” alike. The Sixth Circuit’s rule, Jackson said, violated the “basic principle” that discrimination law “does not vary based on whether or not the plaintiff is a member of a majority group.”

This is a major decision for the Court. The “basic principle” it reaffirms—that discrimination law protects individuals, not groups, and does not vary depending on minority or majority status—plainly applies not only to sexual orientation, but to race as well, calling all DEI hiring into question.

Fundamentally, Ames blows a hole in a concept central to DEI thinking. For a long time, discrimination law in America has been organized around the idea of “protected classes.” Thousands of cases hold that the first requirement of any Title VII discrimination claim is that the employee must show that he “was a member of a protected class.” The Sixth Circuit’s opinion in Ames repeated this statement.

But there are differing views of what the term protected class means. On the DEI view, a “protected class” is a group that has suffered a history of discrimination or oppression. Occasionally judges state this view explicitly, as for example when a district judge in a 2018 case involving transgender people in the military, “the Court also rules that, because transgender people have long been subjected to systemic oppression and forced to live in silence, they are a protected class.”

The DEI movement holds that “protected groups” defined in this way—i.e., groups who have suffered “systemic oppression”—deserve special legal and political treatment. Critically, when governments, employers, or universities give favorable treatment to a “protected class,” that special treatment doesn’t count as unlawful discrimination.

That’s why it’s okay for employers to hire only 6 percent white people. That’s why it’s okay to give bonus points to an applicant’s “diversity”—where that word is code for being non-white or non-male or non-straight. And although this is more of a political or moral question than a legal one, that’s why it’s okay for a president to choose a Supreme Court nomination in part because the nominee is a racial minority or a woman. None of this counts as discrimination because “protected classes” are being favored.

Ames is a pretty clear rejection of that view, at least under Title VII, stating emphatically that it’s the individual, not the group, that matters, and that individuals from majority groups who can’t compete in the oppression Olympics are just as protected as minorities.

Many are wondering why the court’s liberal justices, especially Sonia Sotomayor and Jackson, agreed in Ames. Part of the reason may be that the case, which is pretty technical in some ways, does not expressly overrule the court’s holdings from the 1970s and ’80s upholding narrowly drawn affirmative action plans remedying a “manifest” underrepresentation of minorities or women in “traditionally segregated job categories.”

We don’t know yet whether the Court will hold all affirmative action unlawful under Title VII, but Ames points in that direction. Like Students for Fair Admissions—the 2023 Harvard affirmative action case—Ames is another indication from the Court that affirmative action has passed its expiration date and that in the eyes of the law, reverse discrimination is still discrimination.

https://www.thefp.com/p/are-white-people-a-protected-class