In December of last year the Equal Protection Project (EPP) filed an amicus curiae, or “friend-of-the-court,” brief in a U.S. Supreme Court case called Ames v. Ohio Department of Youth Services:
[A]lmost all of the discriminatory programs EPP has challenged have involved so-called “reverse discrimination,” or discrimination against Whites, or other “majority” parties…In fact, EPP has found since its founding in February 2023, that this is the norm. Almost all the programs EPP has challenged have involved such “reverse discrimination,” or discrimination against White, male students.So EPP’s interest was piqued when we learned about a new U.S. Supreme Court case that highlights a strange, judge-made rule (i.e. it is not part of any statute or regulation) that makes it almost impossible for White, male, or other “majority” party plaintiffs in an employment case to prove discrimination in the courtroom and win.In this case, titled Marlean A. Ames v. the Ohio Department of Youth Services, it was undisputed that Marlean Ames proved a prima facia case of discrimination because the Court agreed that she had been denied a promotion and then fired because she was “straight,” or heterosexual, and the two jobs Ames lost out on went to gay persons who were not even qualified for the jobs.But Ames still lost the case.Why? Because of the bizarre “background circumstances” rule. That rule, which was invented by the federal U.S. Court of Appeals for the District of Columbia Circuit in 1981, says that in addition to showing the normal factors of racial discrimination in an employment case (i.e. basically that a person was fired or not hired because of their race), a so-called “majority” plaintiff in a case of so-called “reverse discrimination” must also show “background circumstances [to] support the suspicion that the defendant is that unusual employer who discriminates against the majority.” Parker v. Baltimore & Ohio R.R. Co., 652 F.2d 1012, 1017 (D.C. Cir. 1981).Is this rule found in Title VII, which governs discrimination in employment?It is not.
Our amicus brief made two key points that had not been argued by the Parties involved in the case:
First, that while discrimination against so-called “majority” parties might have been rare in 1981, it no longer is – in fact, it is the norm. From our brief:
EPP argues additionally, however, that even if the “background circumstances” rule had been correct when invented by the D.C. Circuit in Parker, it is no longer applicable or useful because discrimination against so-called “majority” citizens is no longer “unusual,” but rather has become common. For example, of the over 40 cases of racial and sex discrimination EPP has filed civil rights complaints against since February 2023, most have entailed discrimination against “majority” parties…In sum, what was once “unusual” has now become ubiquitous, making the “background circumstances” requirement an anachronism that must be relegated to the dustbin of judicial history…
[O]ur other major argument is that if you dig into Parker, the D.C. Circuit case that invented the “background circumstances” rule, you find that the authority it cited for the rule not only didn’t set out the rule, it, in fact expressly disclaimed anything like it…
Hopefully some enterprising Supreme Court clerk (hopefully for Justice Alito or Thomas) will take a look at our brief and point one of the Justices to it.
Well, some enterprising Supreme Court clerks most likely did, in fact, point Justices Samuel Alito and Clarence Thomas to our brief.
How do we know?
Well, at the Supreme Court oral argument, held February 26 of this year, Justice Alito, although not specifically naming EPP, made specific reference to the argument we raised regarding the commonality of discrimination against so-called “majority” parties, as we reported:
From Justice Alito:
“[T]he rule that the Sixth Circuit applied was apparently based on an intuition about the way in which most employers behave. And maybe it was sound at the time when McDonnell Douglas was decided. Maybe, as some of the amici have argued, it’s no longer sound today. Suppose we say that that was an error.”[emphasis added]
The other interesting thing about the oral argument was that “all nine of the Supreme Court Justices, counsel for the Petitioner, Marlean Ames, Counsel for the Government, Assistant to the Department of Justice’s Solicitor General Ashley Robertson, and Counsel for the Respondent, Ohio Department of Youth Services, all agreed that majority, i.e. White, Male, Straight, etc. plaintiffs should face the same burden to prove discrimination as any other plaintiffs.” [emphasis in prior post].
And now, the Court’s official opinion has issued, and is a unanimous opinion, authored by Justice Ketanji Brown-Jackson, holding that so-called “majority” plaintiffs do indeed have exactly the same burden to prove discrimination as any other plaintiffs — i.e., the “background circumstances” rule is now history. You can review the Court’s official opinion here.
From Fox News: Supreme Court rules unanimously in favor of straight Ohio woman who claimed discrimination:
The Supreme Court ruled unanimously in favor of an Ohio woman who claimed she was discriminated against for job promotions in favor of gay candidates on Thursday.
The ruling, Ames v. Ohio Department of Youth Services, finds that members of majority groups in protected classes do not need to meet a higher standard of evidence in order to establish discrimination. Justice Ketanji Brown Jackson wrote the opinion of the court in the 9-0 decision.
“The Sixth Circuit has implemented a rule that requires certain Title VII plaintiffs—those who are members of majority groups—to satisfy a heightened evidentiary standard,” Jackson wrote. “We conclude that Title VII does not impose such a heightened standard on majority group plaintiffs. Therefore, the judgment below is vacated.”
What Fox News doesn’t mention is that there is a concurring opinion in the case, authored by Justice Thomas and joined by Justice Neil Gorsuch, that, again, while not explicitly naming EPP, echoes the exact final argument we made urging the court to throw out the “background circumstances” rule because it as based on bogus precedent from 1981:
[The background circumstances] rule is a product of improper judicial lawmaking. The rule was created by D. C. Circuit judges in Parker v. Baltimore & Ohio R. Co., 652 F. 2d 1012 (1981). Applying their own “common sense,” these judges determined that extra evidence is required to prove discrimination when a Title VII plaintiff is white. Id., at 1017. In support of this proposition, the court cited only its mistaken understand ing of the McDonnell Douglas framework, another judge-made construct. At no point in its development of this new rule did the court refer to the text of Title VII. [some citations omitted for clarity].
Justice Thomas also echoed our amicus brief (but cited a different amicus brief by America First Legal) in agreeing that our first argument holds water: namely, that majority-party discrimination, or what we now call DEI, is common today:
The “ ‘background circumstances’ ” rule is nonsensical for an additional reason: It requires courts to assume that only an “ ‘unusual employer’” would discriminate against those it perceives to be in the majority. But, a number of this Nation’s largest and most prestigious employers have overtly discriminated against those they deem members of so-called majority groups. American employers have long been “obsessed” with “diversity, equity, and inclusion” initiatives and affirmative action plans. Initiatives of this kind have often led to overt discrimination against those perceived to be in the majority. Preston v. Wisconsin Health Fund, 397 F. 3d 539, 542 (CA7 2005) (Posner, J., for the court) (explaining that companies are “under pressure from affirmative action plans” to discriminate in favor of members of so-called minority groups). [some citations omitted]
In any case, we are thrilled, whether EPP was overtly named at oral argument or in the written opinion or not, that so-called “reverse discrimination” against “majority parties” is now a thing of the past. As we wrote in our extremely popular opinion piece in the New York Post:
“If the Supreme Court rules as expected, reverse discrimination will soon be just as illegal as regular discrimination is in this country. And that will be a great day for equality in America.”
From X:
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