Contrary to Linda Greenhouse’s years of angsting about the Supreme Court, it’s becoming increasingly clear that it’s neither as divided as its haters believe nor blindly partisan. This isn’t to say that there aren’t problems or some really awful decisions coming out of One First Street, but Justice Ketanji Brown Jackson’s opinion for a unanimous Court in Ames v. Ohio Department of Youth Services serves to demonstrate that the Court hasn’t yet forsaken the law for preferred outcomes. Not this time, at least.

The Supreme Court on Thursday unanimously ruled in favor of a straight woman who twice lost positions to gay workers, saying an appeals court had been wrong to require her to meet a heightened burden in seeking to prove workplace discrimination because she was a member of a majority group.

Recently, the question was posed in a Tuesday Talk whether heterosexuality was a protected class. The Court has now provided its answer.

Nearly half of the federal appeals courts had required men and white people and other members of majority groups to meet a more demanding standard when they sued for workplace discrimination. In eliminating that requirement, the court said that a federal civil rights law demanded equal treatment of all individuals.

The standard for proving workplace discrimination under the law, Justice Ketanji Brown Jackson wrote for the court, “does not vary based on whether or not the plaintiff is a member of a majority group.”

Notably. the Court rejected the distinction between protected and unprotected classes, and instead held that discrimination is discrimination without regard to whether the discrimination was directed toward a minority, or marginalized, identity and was instead directed toward anyone based on sex.

As a textual matter, Title VII’s disparate-treatment provision draws no distinctions between majority-group plaintiffs and minority-group plaintiffs. Rather, the provision makes it unlawful “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U. S. C. §2000e–2(a)(1) (emphasis added). The “law’s focus on individuals rather than groups [is] anything but academic.” Bostock v. Clayton County, 590 U. S. 644, 659 (2020). By establishing the same protections for every “individual”—without regard to that individual’s membership in a minority or majority group—Congress left no room for courts to impose special requirements on majority-group plaintiffs alone.

Over the past decade, a narrative arose that discrimination was something that could only be done by the majority to the minority. What this enabled was discrimination, what used to be called “reverse discrimination” by those who were not the beneficiaries of discriminatory largesse, as a tool of virtue that would allow diversity and inclusion of marginalized persons by deliberately denying fair opportunity to anyone with the misfortune of having the wrong color skin or loving a person with the wrong genitalia.

Circuits, including the Sixth, had constructed an extra prong to their test for discrimination under Title VII when the person claiming it wasn’t part of a historically marginalized group. This was called the “background circumstances” test. It wasn’t that it was impossible for a member of a majority group to suffer discrimination, but that it was presumed that it was highly unusual and thus required a greater showing than a “mere inference.”

At the first step of that framework, the plaintiff must make a prima facie showing that the defendant acted with a discriminatory motive. Relying on Circuit precedent, the District Court concluded that Ames had failed to make that showing because she had not presented evidence of “‘background circumstances’” suggesting that the agency was the rare employer who discriminates against members of a majority group.

The Sixth Circuit affirmed. Like the District Court, the Sixth Circuit held that Ames had failed to meet her prima facie burden because she had not shown “‘background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.’” 87 F. 4th, at 825. The court reasoned that Ames, as a straight woman, was required to make this showing “in addition to the usual ones for establishing a prima-facie case.” Ibid. And it explained that plaintiffs can typically satisfy this burden, where applicable, by presenting “evidence that a member of the relevant minority group (here, gay people) made the employment decision at issue, or with statistical evidence showing a pattern of discrimination . . . against members of the majority group.”

Notably, the rebuttal presumption of  Griggs v. Duke Power based upon disparate impact analysis was sufficient to overcome the prima facie showing, thus shifting the burden back to the employer to prove non-discriminatory justification for its actions. But this didn’t work when the person claiming to have suffered discrimination was a member of a majority group, since no disparate impact would appear. They were thus constrained to prove background circumstances to overcome the belief that discrimination against member of the majority only happened in the rarest of cases.

Given the thrust of diversity and inclusion over the past decade, the assumptions flipped on their heads, with employers, whether public or private, desperately seeking to prove how inclusive  they were by requiring new hires to check boxes to prove they were anything but a member of the majority. While this is not to say that heterosexuals are the new transgenders, it is to say that Title VII prohibits discrimination on the basis of sex, and sex means sex, including women who love men.