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 l
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