Whether Title VII permits courts to impose a heightened evidentiary burden on majority-group plaintiffs alleging employment discrimination by requiring them to demonstrate 'background circumstances' not explicitly mandated by the statute's text

No question identified. : APPLICATION FOR EXTENSION OF TIME IN WHICH TO FILE A PETITION FOR A WRIT OF CERTIORARI TO: The Honorable Brett M. Kavanaugh, Associate Justice of the Supreme Court of the United States and Circuit Justice for the United States Court of Appeals for the Sixth Circuit: Pursuant to 28 U.S.C. § 2101(c) and Rule 13.5 of the Rules of this Court, Applicant Marlean Ames respectfully requests an extension of fourteen (14) days in which to file a petition for a writ of certiorari in this case. The U.S. Court of Appeals for the Sixth Circuit issued its decision on December 4, 2023. See Ames v. Ohio Dept. of Youth Services, 87 F.4th 822 (6th Cir. 2023); Exh. 1. Absent extension, the deadline to file a petition for writ of certiorari will be March 4, 2024. With the requested extension, the petition would be due on March 18, 2024. This application is being filed at least ten days before the petition is due. The jurisdiction of this Court will be invoked under 28 U.S.C. § 1254(1). In support of this application, Applicant states: 1. Title VII of the Civil Rights Act makes it unlawful for an employer to “discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Though the statute’s language is a categorical rule of ‘individual equality,” Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181, 290 (2023) (Gorsuch, J., concurring)—five circuits have read the provision “to impose different burdens on different plaintiffs based on their membership in different demographic groups,” Exh. 1 at 7 (Kethledge, J., concurring) (emphasis in original). In those circuits, majority-group plaintiffs must, in addition to Title VII’s other requirements, show “background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.” Zambetti v. Cuyahoga Cmty. Coll., 314 F.3d 249, 255 (6th Cir. 2002) (cleaned up). But not all courts have embraced the background circumstances requirement. 2. Background circumstances proved dispositive for Marlean Ames. Ames is a heterosexual woman, who has worked for the Ohio Department of Youth Services (‘the Department”) for two decades, starting out as a secretary before earning several promotions and becoming a program administrator. Jd. at 2. She has received “reasonably good” reviews for her performance. Id. at 3. In 2017, Ames started reporting to Ginine Trim, a gay woman. In 2018, she applied to be the Department’s Bureau Chief of Quality; she was not selected despite receiving positive feedback during the interview. Then, in 2019, the Department informed Ames that she was being removed from her position as program administrator. The Department selected a gay man as her replacement, even though he was not qualified and did not even apply for the position. The Bureau Chief promotion that Ames had previously applied for was offered to a gay woman, who also had not applied for the job and lacked the minimum qualifications for the role. Thus, “twice in one year the Department promoted an arguably less-qualified gay employee in a manner adverse to Ames.” Id. at 7 (Kethledge, J., concurring). 3. As the Sixth Circuit noted, but-for the background circumstances requirement, “Ames’s prima-facie case was easy to make.” Jd. at 3. She sued under a protected ground (sexual orientation), was denied promotion in favor of a gay individual, and was later demoted and replaced by another gay individual. Id. But her Title VII foundered because Ames had not produced “evidence that a member of the relevant minority group (here, gay people) made the employment decision at issue” or “statistical evidence showing a pattern of discrimination by the employer against members of the majority group.” Id. at 4. 4. This case is a serious candidate for review. There is an entrenched circuit split on whether majority-group plaintiffs must show bac