Case Particulars

Tribunal

United States Supreme Court

Date Filed

December 16, 2024

Docket No.

No. 23-1039

Case Status

EPP Amicus Brief Filed

Case Overview

On December 16, 2024, the Equal Protection Project filed an amicus curiae, or “friend-of-the-court” brief in the United States Supreme Court in a case called Marlean A. Ames v. Ohio Department of Youth Services. This employment case involves whether the “background circumstances” rule, which some federal courts use to help decide discrimination case outcomes, is good law.

That rule requires, in the courts that have adopted it, that a so-called “majority” plaintiff (White, male, heterosexual, etc.) prove, in addition to the normal discrimination case factors (basically that the plaintiff was fired or not hired because of discrimination), “that the defendant is that unusual employer who discriminates against the majority.”

The plaintiff in this case, Marlean Ames, failed to be promoted and was then fired because she was straight, i.e. heterosexual, while two gay persons got the jobs in question despite being unqualified for them.

And after she sued she lost her case because even though she had been discriminated against, she couldn’t show that her employer was unusual in that it routinely discriminated against “majority” parties.

Ames, in her Supreme Court brief, emphasized that the “background circumstances” rule places an undue burden on majority plaintiffs, conflicts with the text of Title VII, which outlaws employment discrimination against all persons, and conflicts with binding Supreme Court precedent.

EPP’s amicus brief joins these arguments but also emphasizes that while the “background circumstances” rule may have had some validity when it was invented in 1981, in that at that time discrimination against majority parties was rare, now it is common.

From EPP’s 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that even if the “background circumstances” rule had been correct when invented by the D.C. Circuit in Parker, it is no longer applicable or useful because discrimination against so-called “majority” citizens is no longer “unusual,” but rather has become common.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 fact, a recent addition to the EPP team, Professor Mark Perry, has filed over 2,000 civil rights complaints in cases involving Title VI and Title IX race and sex discrimination, most of which involved discrimination against majority parties. As the organization Do No Harm, which advocates for “keeping identity politics out of medical education, research, and clinical practice,” has stated, “[a]lmost every U.S. medical school has at least one scholarship, fellowship, clerkship, award, special preference, or academic program that violates federal civil rights laws. Most of them involve favoritism toward students typically considered to be Underrepresented in Medicine (URiM).”

 

In other words, these programs routinely discriminate 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.

EPP also argued that the “background circumstances” rule rests on shaky legal grounds:

The D.C. Circuit’s Parker case is widely cited as being the starting point of the “background circumstances” rule…But Parker cited only one case as authority for the rule that it invented out of whole cloth, and that case specifically disclaimed anything like the “background circumstances” requirement.

 

From Parker:

 

This court has allowed majority plaintiffs to rely on the McDonnell Douglas criteria to prove a prima facie case of intentionally disparate treatment when background circumstances support the suspicion that the defendant is that unusual employer who discriminates against the majority.

 

652 F.2d at 1017 (citing Daye v. Harris, 655 F.2d 258 (D.C. Cir. 1981) as authority for the background circumstances requirement).

 

But did Daye specifically say that majority plaintiffs were required to show background circumstances sufficient to “support the suspicion that the defendant is that unusual employer who discriminates against the majority?” It did not.

 

What Daye did say is the opposite. Citing a then-recent Title VII case entitled Bundy v. Jackson, 641 F.2d 934, 951 (D.C. Cir. 1981), Daye held only that:

 

to make out a prima facie case the plaintiff must show that she belongs to a protected group, that she was qualified for and applied for a promotion, that she was considered for and denied the promotion, and that other employees of similar qualifications who were not members of the protected group were indeed promoted at the time the plaintiff’s request for promotion was denied.

 

655 F.2d at 262 n.11 (citing Bundy, 641 F.2d at 951). In fact, Daye expressly disclaimed any requirement that a majority plaintiff show “background circumstances” when it held “[t]hat [Daye] is white is no impediment to this suit; white employees are protected by Title VII.” Id. (citing McDonald, 423 U.S. 923, which expressly held that Title VII protects all plaintiffs against discrimination equally).

 

Especially when contrasted with the text of Title VII, which does not distinguish between majority and minority plaintiffs, there was no basis for the court in Parker, based on the only authority cited, i.e. Daye, to invent the “background circumstances” rule as a necessary requirement for majority plaintiffs to make out a prima facie case of discrimination.

 

For this reason, the “background circumstances” rule rests on exceedingly thin legal grounds and should be rejected on this basis alone.