The Volokh Conspiracy
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A Lawyer Who Litigated Grutter v. Bollinger Comments on the Court's Recent Case on Discrimination Against Majority Groups
I've known Michael Rosman at the Center for Individual Rights for 30 years; he has litigated many important cases, including with regard to racial preferences, and was one of the lawyers in Grutter v. Bollinger. I'm therefore delighted to pass along his short reaction to Ames v. Ohio Dep't of Youth Services; all the remaining text of the post is Michael's:
In Ames v. Ohio Dept. of Youth Services, the Supreme Court unanimously rejected the "background circumstances" rule that some circuits had applied in Title VII cases when the plaintiff claiming employment discrimination was a member of a "majority" group (like whites). The "background circumstances" rule required such "majority" plaintiffs to present some evidence showing that their employer was the "unusual" employer that discriminated against the majority.
Title VII, the Court held, had one text, that text applied to everyone and, accordingly, the same requirements for proving discrimination applied to everyone. Pretty straightforward, and, in my view, undoubtedly correct. So correct that Ohio did not really bother to defend the "background circumstances" rule.
What I have not read in the aftermath of the opinion, though, is the Court's own role in inspiring this bizarre interpretation, and allowing it to fester as a blot on statutory interpretation and Title VII. Not to mention the Court's less-than-candid discussion of its own responsibility.
The appeal in Ames was from the Sixth Circuit. In its first footnote, the Court noted the other circuits that had adopted the rule: the Seventh, Eighth, Tenth, and D.C. Circuits. It cited cases decided between 1992 and 2004 from those circuits. But, as Justice Thomas's concurrence pointed out, the "background circumstances" requirement was first adopted by the D.C. Circuit in 1981 in a case called Parker v. Baltimore and Ohio Railroad Co. So, for over forty years, majority plaintiffs in at least some jurisdictions had to meet an additional requirement that the Supreme Court unanimously rejected in 2025 in a quick eight-plus page opinion. And the "circuit split" has existed since at least 1999, when the Third Circuit explicitly rejected the "background circumstances" requirement.
In its decision, the Court in Ames held that the "background circumstances" rule was an improper addition to the evidentiary framework that the Court had adopted in McDonnell Douglas v. Corp v. Green. It described that framework in broad terms: the Court described the first step of the McDonnell Douglas framework as requiring the plaintiff to produce enough evidence to support "an inference of discriminatory motive." But McDonnell Douglas actually had quite a bit more to say about how to do that (all of which is omitted in Ames).
Specifically, the McDonnell Douglas framework said that plaintiffs could create an inference of discrimination by demonstrating that (1) they were a racial minority, (2) that they applied for and were qualified for a job, (3) they were rejected and (4) the job remained open. In Parker, the 1981 D.C. Circuit case, the court took that first step—being a racial minority—and decided that it had to be modified in "light of common experience" (a phrase that the Supreme Court had used in a later case) if the plaintiff was not a racial minority. Judge Mikva wrote for the court: "Whites are also a protected group under Title VII, but it defies common sense to suggest that the promotion of a black employee justifies an inference of prejudice against white co-workers in our present society."
Thus was born the "background circumstances" test. But its roots in McDonnell Douglas were ignored by both the Court in Ames and even Justice Thomas's concurrence (which was highly critical of the McDonnell Douglas framework).
One last thought. Conspirator Ilya Somin tells us that Ames reaffirms the principle that "discrimination based on sexual orientation is sex discrimination," the principle that was first articulated in Bostock v. Clayton County. But Ames is actually a bit confusing on this point.
Bostock held that discrimination based on sexual orientation is invariably sex discrimination:
[I]t is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex. Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer's mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague.
But the broad proposition is at best questionable. For example, one can have sexual orientation discrimination even where sex discrimination is permissible under Title VII. Consider a male sports team that limits its locker room attendants to heterosexual males. If being male is a BFOQ—bona fide occupational qualification—for the job, then there is nothing illegal about the (admitted) sex discrimination. But there's still sexual orientation discrimination going on, and (in the absence of a rather idiosyncratic understanding of sex discrimination) the sexual orientation discrimination does not appear to constitute sex discrimination, at least as Bostock described it. (After all, the employer is treating men who are attracted to men precisely the same way that it is treating women who are attracted to men.)
In any event, Ames may have said something else. In describing the fact that Ames lost out on a promotion to a lesbian, the Court said that such evidence "would ordinarily satisfy her prima facie burden" in the absence of the "background circumstances" rule. Would it? "Ordinarily," to show sex discrimination, one would need to show that someone of the opposite sex obtained the position in order to satisfy the prima facie burden. (Ames was, in fact, replaced by a male after a second and distinct adverse employment determination.)
The Court's suggestion that a woman showing that she was rejected in favor of a lesbian would satisfy her prima facie burden under Title VII doesn't obviously reinforce that "discrimination based on sexual orientation is sex discrimination," but rather suggests that sexual orientation discrimination independently violates Title VII. If so, this would be a rather startling development given the absence of the phrase "sexual orientation" in Title VII and the text-focused analysis in Bostock.
In any event, the court chose not to reach any of the respondents' alternative arguments, and sent the case back down to the Sixth Circuit for further proceedings. So, I don't think anything in the opinion precludes the employer from arguing that Ames losing out to a lesbian is not sex discrimination in violation of Title VII. Or, for that matter, for Ames to argue that she would have received the promotion had she been a gay male, which certainly would be sex discrimination under Bostock.
