A federal judge agreed on Monday that a Denver sheriff’s sergeant may proceed with his claim that he was subjected to sex-based discrimination when he was passed over for promotion in favor of female employees who allegedly were less qualified.

U.S. District Court Judge Nina Y. Wang observed a forthcoming U.S. Supreme Court decision may alter the level of proof needed for “reverse discrimination” cases, meaning those in which an employer discriminates against a majority group, rather than a minority. But for now, Wang decided there were facts still to be determined about why the Denver Sheriff Department did not promote Joseph Bowen.

“Plaintiff identifies his employer’s stated bases for his non-promotion and provides specific examples as to why those rationales ‘could not be the reason’ he was passed over,” she wrote in an April 14 order. Therefore, she could not grant the city’s motion and resolve Bowen’s lawsuit in Denver’s favor.

Bowen’s lawsuit alleged he began working as a sheriff’s deputy in 2005 and received a promotion to sergeant in 2015. Historically, during a multi-year window, the department would promote employees based on their assessment scores. The highest-scoring candidate would be first in line, and the department would “work its way down the list.”

For the 2019-2021 promotion cycle, when Bowen sought a promotion to captain, the department adopted a new approach. Based on assessment scores, candidates for promotion fell into one of three “bands.” Those in the highest-scoring band were eligible for promotion, but the department did not go in any particular order when selecting people to promote.

Around that time, Bowen alleged, the department unofficially decided to strive to have its workforce be 30% female by 2030. The target correlated with a project out of New York University School of Law called “30×30,” in which the Denver Police Department and Regional Transportation District’s police participate.

Bowen alleged he was the third-highest-scoring candidate in the top band, but between 2019-2021 the department promoted three candidates, all of whom were women. One scored higher than him, the other two scored lower. Although Bowen alleged he had received positive performance reviews over 15 years, the sheriff’s department allegedly did not promote him because of how he interacted with others and because of a recent administrative investigation.

He then sued for unlawful sex discrimination.

Denver sought to end the lawsuit in its favor, pointing out Bowen had not met the standard that applies to reverse discrimination cases. The Denver-based federal appeals court has recognized that plaintiffs must show there are “background circumstances” suggesting an employer discriminates against the majority.

Other courts have also required plaintiffs to supply additional proof, but the Supreme Court recently heard arguments in one such appeal and signaled it may reject that requirement. In a case out of the Cincinnati-based Sixth Circuit, where a straight woman was passed over for a position that went to a gay job-seeker, several justices suggested the roadmap for any plaintiff should be the same.

Nonetheless, Denver argued that under existing law, Bowen’s allegations that the sheriff’s department wanted more of its workforce to be female and that three women in the top band were promoted did not, on their own, suggest discrimination against men.

“To the contrary, his allegations state explicitly that the DSD could select anyone from the high band for promotion, bypassing individuals on the candidate list, should it choose, which is what DSD did in this case,” wrote the Denver City Attorney’s Office. If Bowen’s logic prevailed, the city might violate the law “every time it selected a female candidate over a male candidate from the high band.”

Bowen acknowledged no other court had found that an employer adopting the 30%-female-workforce target was sufficient to show background circumstances of discrimination.

But there is “no way that an Initiative designed to encourage departments to have an arbitrary percentage of the workforce female does not impact males,” attorney Thomas H. Mitchiner added.

Wang, in her order, noted Bowen had not alleged the department intended to satisfy a 30% target through its promotion system. Nor had he alleged sex was a factor considered under the new process, or what factors the department does consider.

“Simply alleging that female candidates with lower scores were promoted over male candidates with higher scores is insufficient to plausibly allege that the Sheriff’s Department discriminates against men,” she wrote.

However, Wang also evaluated whether Bowen’s allegations suggested a “reasonable probability” Bowen would have been promoted if he were not male. Because Bowen had cast doubt on the department’s stated reasons for not promoting him, she allowed the claim to continue.

In case the Supreme Court’s forthcoming decision has “an impact on the law governing this case,” Wang also directed the parties to decide if they wanted more time to file other, potentially case-ending motions before the early May deadline.

The case is Bowen v. City and County of Denver.