Amicus Curiae Brief — Marlean A. Ames, Petitioner v. Ohio Department of Youth Services

Supreme Court briefDec 16, 2024

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No. 23-1039

In the Supreme Court of the United States

__________

MARLEAN A. AMES,

Petitioner,

OHIO DEPARTMENT OF YOUTH SERVICES,

Respondent.

____________________

ON WRIT OF CERTIORARI TO THE

U.S. COURT OF APPEALS FOR THE SIXTH CIRCUIT

_______________

BRIEF FOR AMERICA FIRST LEGAL

FOUNDATION AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

__________

NICHOLAS R. BARRY

ANDREW J. BLOCK

America First Legal

Foundation

611 Pennsylvania Ave. SE

#231

Washington, DC 20003

(202) 964-3721

CHRISTOPHER E. MILLS

Counsel of Record

Spero Law LLC

557 East Bay Street

#22251

Charleston, SC 29413

(843) 606-0640

cmills@spero.law

TABLE OF CONTENTS

Page

Table of Authorities .....................................................ii

Interest of Amicus Curiae ........................................... 1

Summary of the Argument ......................................... 2

Argument ..................................................................... 4

The “background circumstances” rule’s

presumption that “majority” employees do not

face discrimination is unlawful and defies

reality. ............................................................... 4

A. The rule lacks a footing in Title VII. ............ 4

B. The rule violates the Constitution. .............. 5

C. The rule contradicts reality. ......................... 7

II. Insuperable problems exist with the trigger

for the “background circumstances” rule. ...... 12

Conclusion.................................................................. 22

TABLE OF AUTHORITIES

Page(s)

CASES

Beneker v. CBS, No. 2:24-cv-01659 (C.D. Cal. filed

Feb. 29, 2024) ........................................................... 1

Bishopp v. D.C., 788 F.2d 781 (CADC 1986) ............ 12

Bostock v. Clayton Cnty., 590 U.S. 644 (2020) ..... 2, 19

Castaneda v. Partida, 430 U.S. 482 (1977) ............ 6, 7

Collins v. Sch. Dist. of Kansas City, Mo.,

727 F. Supp. 1318 (W.D. Mo. 1990) ................. 12, 21

Connecticut v. Teal, 457 U.S. 440 (1982) .................... 5

Dill v. Int’l Bus. Mach. Corp., No. 1:24-cv-852

(W.D. Mich. filed Aug. 20, 2024) ............................. 1

Emp. Div., Dep’t of Hum. Res. of Oregon v. Smith,

494 U.S. 872 (1990) .................................................. 6

Gen. Dynamics Land Sys., Inc. v. Cline,

540 U.S. 581 (2004) .................................................. 2

Griggs v. Duke Power Co., 401 U.S. 424 (1971).......... 2

Harding v. Gray, 9 F.3d 150 (CADC 1993) .......... 4, 11

Harker v. META Platforms, Inc., No. 23-cv-07865

(S.D.N.Y. filed Sep. 5, 2023) .................................... 1

Hecox v. Little, 104 F.4th 1061 (CA9 2024) .............. 17

J.E.B. v. Alabama ex rel. T.B.,

511 U.S. 127 (1994) .............................................. 6, 7

Kascsak v. Expedia, No. 23-cv-01373-DII

(W.D. Tex. filed Nov. 9, 2023) .................................. 1

iii

League of United Latin Am. Citizens v. Perry,

548 U.S. 399 (2006) ................................................ 15

Livingston v. Roadway Exp., Inc.,

802 F.2d 1250 (CA10 1986) ............................... 5, 20

Loper Bright Enters. v. Raimondo,

144 S. Ct. 2244 (2024) .............................................. 8

Mastro v. Potomac Elec. Power Co.,

447 F.3d 843 (CADC 2006) ...................................... 4

Miller v. Johnson, 515 U.S. 900 (1995)....................... 7

Mills v. Health Care Serv. Corp.,

171 F.3d 450 (CA7 1999) ........................... 3, 4, 5, 12

Oncale v. Sundowner Offshore Servs., Inc.,

523 U.S. 75 (1998) .................................................... 6

Our Lady of Guadalupe Sch. v. Morrissey-Berru,

591 U.S. 732 (2020). ............................................... 16

Palmore v. Sidoti, 466 U.S. 429 (1984) ....................... 6

Parents Involved in Cmty. Sch. v. Seattle Sch.

Dist. No. 1, 551 U.S. 701 (2007) .............................. 7

Parker v. Baltimore & O.R. Co., 652 F.2d 1012

(CADC 1981) ...................................................... 4, 20

Preston v. Wisconsin Health Fund, 397 F.3d 539

(CA7 2005) ................................................................ 8

Price v. Valvoline, LLC, 88 F.4th 1062 (CA5 2023) ... 8

San Antonio Indep. Sch. Dist. v. Rodriguez,

411 U.S. 1 (1973) .................................................... 21

Serbian E. Orthodox Diocese for U.S. of Am. &

Canada v. Milivojevich, 426 U.S. 696 (1976) ........ 16

Shelby Cnty. v. Holder, 570 U.S. 529 (2013) ............ 11

Smith v. Ally Fin., No. 3:24-cv-00529

(W.D.N.C. filed June 6, 2024) .................................. 1

Smyer v. Kroger Ltd. P’ship I, No. 22-3692,

2024 WL 1007116 (CA6 Mar. 8, 2024) .................... 8

Students for Fair Admissions, Inc. v.

President & Fellows of Harvard Coll.,

600 U.S. 181 (2023) ............................................ 6, 15

Thomas v. Rev. Bd. of Indiana Emp. Sec. Div.,

450 U.S. 707 (1981) ................................................ 16

Vaughn v. CBS Broad., Inc., No. 2:24-cv-05570

(C.D. Cal. filed July 1, 2024) ................................... 1

Wood v. Red Hat, No. 2:24-cv-00237 (D. Idaho filed

May 8, 2024) ............................................................. 1

STATUTES

42 U.S.C. § 2000e-2 ..................................................... 2

OTHER AUTHORITIES

C. D’Zurilla, CBS Announces Diversity Overhaul of

Writers Rooms and Script-Development Program,

L.A. Times (July 13, 2020), https://perma.cc/29BKYX43 ......................................................................... 9

C. Sullivan, Circling Back to the Obvious, 46 Wm. &

Mary L. Rev. 1031 (2004) ........................................ 5

Compl., Dill v. Int’l Bus. Mach. Corp., No. 24-cv00852, Doc. 1 (W.D. Mich. Aug. 20, 2024) ............. 11

Def’s Br. in Supp. of Mot. to Dismiss, Dill v. Int’l Bus.

Mach. Corp., No. 24-cv-00852, Doc. 11 (W.D. Mich.

Oct. 23, 2024) ......................................................... 11

I. Kendi, How To Be an Antiracist (2019)................... 9

Int’l Bus. Mach. Corp., 2022 Annual Report 16

(2023), at https://perma.cc/5PX2-9L2W ................ 11

L. Rice, Altered Reality, Entertainment Weekly (Feb.

2, 2022), https://perma.cc/CT7Q-9GF5 .................... 9

Majority of U.S. Employers Have Implemented DEI

Initiatives in 2021, L.A. Times (Dec. 15, 2021),

https://perma.cc/8RR6-5Y9E ................................... 8

Male/Female Ratio by US County, Reddit (2024),

https://tinyurl.com/47a75d4s ................................. 14

Pet. for Writ of Cert., United States v. Skrmetti, No.

23-477 (U.S. Nov. 6, 2023) ..................................... 17

T. Henderson, More US Counties Lack a Clear Racial

Majority (And People Are Getting Along Pretty

Well), Stateline (Dec. 5, 2022),

https://perma.cc/36JW-8RB6 ................................. 15

Third Am. Compl., Beneker v. CBS Studios, Inc., No.

2:24-cv-01659-JFW-SSC, Doc. 45 (C.D. Cal. June

10, 2024) ................................................................. 10

U.S. Census Bureau, Age and Sex Composition: 2020

(May 2023), https://perma.cc/J2JA-9Z8P .............. 13

U.S. Census Bureau, Annual Estimates of the

Resident Population by Sex, Race, and Hispanic

Origin for Ohio: April 1, 2010 to July 1, 2019,

https://perma.cc/B3E7-PWU2 ................................ 18

U.S. Census Bureau, County Population by

Characteristics: 2020-2023 (June 27, 2023),

https://tinyurl.com/3rnjkvha ................................. 14

U.S. Census Bureau, QuickFacts: Detroit City,

Michigan, https://perma.cc/XZR3-ZNZL ............... 14

U.S. Census Bureau, QuickFacts: Franklin County,

Ohio, https://perma.cc/86JX-F6TL ........................ 18

U.S. Dep’t of Labor, Occupations with the Largest

Share of Women Workers (Apr. 2024),

https://perma.cc/EL26-5JKN ................................. 13

U.S. Dep’t of Labor, Occupations with the Smallest

Share of Women Workers (Apr. 2024),

https://perma.cc/7TR9-2L4Y .................................. 13

U.S. Religion Census, Maps and Data Files for 2020

(June 23, 2023), https://perma.cc/39M2-4CCF ..... 16

U.S. Resp. in Opp. to Mot. for Summ. J., Boe v.

Marshall, No. 22-cv-184, Doc. 627 (M.D. Ala. July

1, 2024) ................................................................... 17

INTEREST OF AMICUS CURIAE

America First Legal Foundation is a nonprofit

organization dedicated to promoting the rule of law in

the United States and defending individual rights

guaranteed by law. America First Legal has a

substantial interest in this case because it has filed

dozens of complaints with the EEOC or lawsuits

against companies, including CBS, IBM, Macy’s,

Starbucks, Kellogg’s, Activision, and Major League

Baseball, for unlawful race and sex-based

discrimination in employment. See, e.g., Beneker v.

CBS, No. 2:24-cv-01659 (C.D. Cal. filed Feb. 29, 2024);

Dill v. Int’l Bus. Mach. Corp., No. 1:24-cv-852 (W.D.

Mich. filed Aug. 20, 2024); Vaughn v. CBS Broad.,

Inc., No. 2:24-cv-05570 (C.D. Cal. filed July 1, 2024);

Smith v. Ally Fin., No. 3:24-cv-00529 (W.D.N.C. filed

June 6, 2024); Wood v. Red Hat, No. 2:24-cv-00237 (D.

Idaho filed May 8, 2024); Kascsak v. Expedia, No. 23cv-01373-DII (W.D. Tex. filed Nov. 9, 2023); Harker v.

META Platforms, Inc., No. 23-cv-07865 (S.D.N.Y. filed

Sep. 5, 2023). These companies have illegally awarded

jobs, special benefits, bonuses, and other career

opportunities to minorities while openly excluding

whites (and sometimes Asians), heterosexuals, and

males.

Where

applied,

the

“background

circumstances” rule is an atextual, unconstitutional,

and arbitrary obstacle to the vindication of employees’

nondiscrimination rights. *

* Under Rule 37.6, no counsel for a party authored this brief in

whole or in part, and no person other than amicus curiae or its

counsel made a monetary contribution to its preparation or

submission.

SUMMARY OF THE ARGUMENT

Title VII generally prohibits employment

discrimination against any person because of their

“race, color, religion, sex, or national origin.” 42 U.S.C.

§ 2000e-2(a). As this Court has said, “race” does not

“refer only to the black race” or “sex” “only to the

female.” Gen. Dynamics Land Sys., Inc. v. Cline, 540

U.S. 581, 598 (2004). Rather, Title VII prohibits

“[d]iscriminatory preference for any group, minority or

majority.” Griggs v. Duke Power Co., 401 U.S. 424, 431

(1971). This Court has gone on to say that the “focus”

of Title VII’s inquiry “should be on individuals, not

groups.” Bostock v. Clayton Cnty., 590 U.S. 644, 658

(2020). The “statute works to protect individuals of

both sexes”—and all races, religions, and national

origins—“from discrimination, and does so equally.”

Ibid.

Except, a few circuits subject Title VII claimants

from purported “majority” groups to a greater initial

burden of showing discrimination based on a protected

characteristic. As the decision below explains, “in

addition to the usual [showing] for establishing a

prima-facie case” of discrimination under Title VII,

these courts require a member of a “majority” group to

“show background circumstances to support the

suspicion that the defendant is that unusual employer

who discriminates against the majority.” Pet. 5a

(cleaned up).

This brief makes two points in support of

Petitioner’s argument that this “background

circumstances” rule is unlawful. First, courts applying

this rule “operate[] from the presumption that it is the

unusual employer who discriminates against majority

employees.” Mills v. Health Care Serv. Corp., 171 F.3d

450, 456–57 (CA7 1999). But that presumption—as

shown in amicus’s own ongoing cases—is highly

suspect in this age of hiring based on “diversity,

equity, and inclusion.” Even if the presumption had

any ongoing validity, the “background circumstances”

rule atextually and unconstitutionally makes

adjudication of individual cases turn on group

stereotypes.

Second, courts applying the “background

circumstances” rule have glossed over a necessary

predicate—how to decide who is a member of a

“majority” group. Instead, their assumption appears

to be that “white men” are usually the appropriate

recipients of a higher burden (id. at 456)—though

below, the court placed the burden on a heterosexual

woman. But, especially as the country diversifies, how

to decide whether a person is part of the “majority”—

and whether to use a locality, state, country, industry,

supervisor, or other frame of reference—is far from

obvious. It is still less obvious how courts are supposed

to decide whether a person is, for example, a member

of a “majority” religion—even after deciding the

proper denominator, how can courts permissibly

categorize religions and believers to decide who is in

and who is out? And even if courts could answer all

these questions, the result would be placing a higher

burden on claimants depending on random variables

like what county they live in or their industry—

arbitrarily treating like cases differently.

The better answer is that Title VII protects all

workers equally from unlawful discrimination. The

Court should reverse.

ARGUMENT

I. The “background circumstances” rule’s

presumption that “majority” employees do

not face discrimination is unlawful and

defies reality.

The relatively few circuits that apply the

“background circumstances” rule assume that

“[i]nvidious racial discrimination against whites is

relatively uncommon in our society,” Harding v. Gray,

9 F.3d 150, 153 (CADC 1993), so “there is nothing

inherently suspicious about an employer’s decision to

promote a minority applicant instead of a white

applicant, or to fire a white employee.” Mastro v.

Potomac Elec. Power Co., 447 F.3d 843, 851 (CADC

2006) (cleaned up). These courts thus apply a

“presumption that it is the unusual employer who

discriminates against majority employees.” Mills, 171

F.3d at 456–57. This presumption is repeated through

the relevant circuit decisions but almost never

supported by any citation, with courts instead

invoking “common sense” about “our present society.”

Parker v. Baltimore & O.R. Co., 652 F.2d 1012, 1017

(CADC 1981). This presumption and the “background

circumstances” rule contradict text, constitutional

principles, and reality.

A. The rule lacks a footing in Title VII.

To start, nothing in Title VII’s text supports a

higher burden on “majority” employees who claim

discrimination. Some courts have asserted that “[t]he

‘background circumstances’ requirement is not an

additional hurdle for white plaintiffs.” Harding, 9 F.3d

at 154. That is plainly incorrect, as shown by the

decision below, which ordered dismissal because of the

“background circumstances” rule. See App. 5a; see

also, e.g., Livingston v. Roadway Exp., Inc., 802 F.2d

1250, 1253 (CA10 1986) (affirming dismissal because

of failure to show “background facts”); C. Sullivan,

Circling Back to the Obvious, 46 Wm. & Mary L. Rev.

1031, 1104 (2004) (explaining that a “majority”

plaintiff “cannot get to the jury by the identical proof”

that would suffice for a “minority” plaintiff); cf. Mills,

171 F.3d at 457 (“The only question is whether the

plaintiff can show any background circumstances

which give rise to an inference of discrimination.”).

Title VII’s text cannot support this higher burden

for “majority” employees. The statute refers to

categories—race, sex, religion—not groups within

those categories. As discussed, this Court has

repeatedly said that “[t]he principal focus of the

statute is the protection of the individual employee,

rather than the protection of the minority group as a

whole.” Connecticut v. Teal, 457 U.S. 440, 453–54

(1982). “Title VII does not permit” a victim of

discrimination “to be told that he has not been

wronged because other persons of his or her race or sex

were hired.” Id. at 455. Thus, nothing in Title VII

supports the “background circumstances” rule.

B. The rule violates the Constitution.

Though

the

inconsistency

between

the

“background circumstances” rule and the statutory

text is a sufficient reason to reject the rule, the rule

also violates the Constitution. As Judge Kethledge

pointed out, “[i]f the statute had prescribed this rule

expressly, [courts] would subject it to strict scrutiny”

as to race and religion, and heightened scrutiny as to

sex under the Equal Protection Clause. Pet. 11a. This

Court recently reiterated that “[t]he guarantee of

equal protection cannot mean one thing when applied

to one individual and something else when applied to

a person of another color”: “Eliminating racial

discrimination means eliminating all of it.” Students

for Fair Admissions, Inc. v. President & Fellows of

Harvard Coll., 600 U.S. 181, 206 (2023) (cleaned up).

The government “may never use race as a stereotype

or negative.” Id. at 213. The same is true of religion:

“The government may not” “impose special disabilities

on the basis of religious views or religious status.”

Emp. Div., Dep’t of Hum. Res. of Oregon v. Smith, 494

U.S. 872, 877 (1990). And “gender classifications that

rest on impermissible stereotypes violate the Equal

Protection Clause.” J.E.B. v. Alabama ex rel. T.B., 511

U.S. 127, 140 n.11 (1994). Last, the Fourteenth

Amendment extends to “all governmentally imposed

discrimination,” including in the “judicial” branch.

Palmore v. Sidoti, 466 U.S. 429, 432 & n.1 (1984).

When it comes to presumptions about

discrimination, this Court has warned that “[b]ecause

of the many facets of human motivation, it would be

unwise to presume as a matter of law that human

beings of one definable group will not discriminate

against other members of their group.” Oncale v.

Sundowner Offshore Servs., Inc., 523 U.S. 75, 78

(1998) (quoting Castaneda v. Partida, 430 U.S. 482,

499 (1977)). As Justice Marshall put it, “this Court has

a solemn responsibility to avoid basing its decisions on

broad generalizations concerning minority groups. If

history has taught us anything, it is the danger of

relying on such stereotypes.” Castaneda, 430 U.S. at

504 (concurring opinion); see Parents Involved in

Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701,

742 (2007) (“History should teach greater humility.”).

No more can courts legitimately presume that

members of one group will discriminate against

members of another.

Yet the “background circumstances” has been

justified entirely based on a stereotype about expected

group treatment of employees—and it has been

applied only to disadvantage members of certain

groups. This violates equal protection. “At the heart of

the Constitution’s guarantee of equal protection lies

the simple command that the Government must treat

citizens as individuals, not as simply components of a

racial, religious, sexual or national class.” Miller v.

Johnson, 515 U.S. 900, 911 (1995) (cleaned up). By

treating some employees as simple components of

their group, the “background circumstances” rule is

based on “the very stereotypical assumptions the

Equal Protection Clause forbids.” Id. at 914. And

“[t]he community is harmed by the [courts’]

participation in the perpetuation of invidious group

stereotypes and the inevitable loss of confidence in our

judicial system that state-sanctioned discrimination

in the courtroom engenders.” J.E.B., 511 U.S. at 140.

The “background circumstances” rule contradicts the

Constitution.

C. The rule contradicts reality.

Last, the presumption underlying “background

circumstances”—that “majority group” employees do

not face discrimination in employment—is dubious in

fact. Presumptions sometimes “have their place in

statutory interpretation, but only to the extent that

they approximate reality.” Loper Bright Enters. v.

Raimondo, 144 S. Ct. 2244, 2265 (2024). Many

employers are obsessed with DEI—diversity, equity,

and inclusion. By 2021, “[m]ore than eight in 10 (83%)

U.S. organizations” were already “implementing

diversity, equity and inclusion initiatives,” with

“human resources policies” being “the most prevalent

(74%) DEI activity.” 1 More than half of organizations

with a DEI policy have quantitative “metrics in place

to measure DEI results”—metrics that almost always

measure people by their group membership.

“[D]iversity has increasingly become a code word

for discrimination.” Price v. Valvoline, LLC, 88 F.4th

1062, 1068 (CA5 2023) (Ho, J., concurring). “[I]t is not

at all unusual for major segments of society to base

their actions on a person’s membership in certain

demographic groups, often to the detriment of the

‘majority’ and certain ‘minority’ persons sometimes

deemed to be ‘majority-adjacent.’” Smyer v. Kroger

Ltd. P’ship I, No. 22-3692, 2024 WL 1007116, at *7

(CA6 Mar. 8, 2024) (Boggs, J., concurring). Many

companies are “imbued with belief in ‘diversity’” or

otherwise “under pressure from affirmative action

plans” to discriminate in favor of supposed “minority”

employees. Preston v. Wisconsin Health Fund, 397

F.3d 539, 542 (CA7 2005) (Posner. J.). Favoring those

employees “necessarily means disfavoring” employees

in other groups. Price, 88 F.4th at 1068 (Ho, J.,

concurring).

1 Majority of U.S. Employers Have Implemented DEI Initiatives

in 2021, L.A. Times (Dec. 15, 2021), https://perma.cc/8RR6-5Y9E.

That is the point. According to one prominent DEI

advocate, “The only remedy to past discrimination is

present discrimination. The only remedy to present

discrimination is future discrimination.” 2 This means,

for instance, “treating, considering, or making a

distinction in favor or against an individual based on

that person’s race”—including by “advancing nonWhite Americans.” 3

Amicus’s own ongoing cases show this reality. See

supra p. 1. For instance, Brian Beneker is a white,

heterosexual male script coordinator and freelance

scriptwriter who has regularly written episodes for

CBS’s “Seal Team” television series since 2017. CBS’s

CEO “set a goal that all writers rooms on the

network’s primetime series be staffed 40 percent

BIPOC [Black, Indigenous, and people of color] in the

2021-22 season.” 4 The next year, the goal increased to

50%. 5

Unsurprisingly, Beneker—a white male—has

repeatedly been denied a staff writer position with the

show, while CBS hired and promoted individuals who

lacked experience and screenwriting credits but were

part of the favored hiring groups; that is, they were

nonwhite, LGBTQ, or female. Beneker witnessed CBS

hire several staff writers without experience who met

2 I. Kendi, How To Be an Antiracist 19 (2019).

3 Id. at 19–20.

4 L. Rice, Altered Reality, Entertainment Weekly (Feb. 2, 2022),

https://perma.cc/CT7Q-9GF5.

5 C. D’Zurilla, CBS Announces Diversity Overhaul of Writers

Rooms and Script-Development Program, L.A. Times (July 13,

2020), https://perma.cc/29BK-YX43.

their DEI qualifications, despite telling Beneker that

they could not hire him because the show had too

many writers just months prior. CBS explained that

these new writers “checked diversity boxes that

Beneker did not.” At one point, CBS even asked him

whether another writer was Asian. Despite Beneker’s

success in writing for the series, he soon realized that

he was ineligible for hiring in the writer’s room

because of the illegal, discriminatory sex and race

requirements enforced by CBS. 6

Beneker’s ability to pursue his claim of

employment discrimination will be impeded if the

district court decides to impose the “background

circumstances” rule on his case simply because of his

race or sex. As Petitioner explains, there is no Ninth

Circuit precedent on point, and some courts within the

Ninth Circuit have applied the rule. Pet. 23–24.

Applying the rule to Beneker’s claim threatens his

ability to obtain redress, even though the relevant

“background” discriminatory policy is—as a matter of

reality—expressly imposed against whites.

Another of amicus’s clients, Randall Dill, was an

exemplary employee at IBM’s consulting division and

received stellar reviews from his clients. But he too is

a white male, and IBM incentivizes its executives to

engage in race and sex discrimination by having

“executive compensation metrics that include a

diversity modifier to reinforce our focus and continued

accountability

for

improving

the

diverse

6 Third Am. Compl., Beneker v. CBS Studios, Inc., No. 2:24-cv01659-JFW-SSC, Doc. 45 (C.D. Cal. June 10, 2024).

representation of our workforce.” 7 In July 2023,

without notice or warning, Dill was placed on a

Performance Improvement Plan tied to metrics

outside his job description or control, only to be

terminated a few months later. Dill fell within two of

three disfavored categories—whites, Asians, and

men. 8

Because Dill’s case is within the Sixth Circuit, one

of IBM’s dismissal arguments is that Dill did not

“plead ‘background circumstances’ supporting an

inference that [IBM] discriminates against the white,

male majorities to which he belongs.” 9 If an express

racial balancing directive is not a damning

background circumstance, it is hard to imagine what

might be. But the point is that any presumption that

adverse employment actions against minority

employees are more “inherently suspicious” (Harding,

9 F.3d at 153) than the same actions against majority

ones is no longer sound. A presumption’s “current

burdens must be justified by current needs,” Shelby

Cnty. v. Holder, 570 U.S. 529, 550 (2013) (cleaned up),

but this presumption cannot be justified in 2024. The

presumption is, at least for many large employers

today, exactly backwards.

In sum, the “background circumstances” rule

applies without textual or constitutional warrant to

Int’l Bus. Mach. Corp., 2022 Annual Report 16 (2023), at

https://perma.cc/5PX2-9L2W.

8 Compl., Dill v. Int’l Bus. Mach. Corp., No. 24-cv-00852, Doc. 1

(W.D. Mich. Aug. 20, 2024).

9 Def’s Br. in Supp. of Mot. to Dismiss 1, id., Doc. 11 (W.D. Mich.

Oct. 23, 2024).

place an obstacle for plaintiffs who now often face

discrimination. It is “unconscionable for the courts to

erect this arbitrary barrier which serves only to

frustrate those who have legitimate Title VII claims.”

Collins v. Sch. Dist. of Kansas City, Mo., 727 F. Supp.

1318, 1322 (W.D. Mo. 1990).

II.

Insuperable problems exist with the trigger

for the “background circumstances” rule.

Beyond the “background circumstances” rule’s

incoherent and unlawful theoretical basis, its

application suffers from the lack of any principled way

to decide when it is triggered—and an arbitrariness

that attends any choice. The central problem is how to

decide who is the “majority” and who is the “minority.”

Surprisingly, courts have given this issue almost no

attention, generally assuming that “white men” (and,

as below, heterosexuals) are the majority, and

everyone else the minority. Mills, 171 F.3d at 456. For

instance, the D.C. Circuit has applied the “background

circumstances” rule to a white plaintiff while

acknowledging that “[o]f course whites are in the

minority in the District of Columbia.” Bishopp v. D.C.,

788 F.2d 781, 786 n.5 (CADC 1986). The court glossed

over that problem on the unsatisfactory ground that

“neither this court nor the Supreme Court has

squarely addressed the issue whether minority status

for purposes of a prima facie case could have a regional

or local meaning.” Ibid. This refusal to grapple with a

necessary predicate to the rule—how to decide who the

“majority” is—underscores the rule’s deficiencies.

The apparent assumption that white, heterosexual

males are always the “majority” falls apart on

reflection. To decide the “majority,” courts need a

frame of reference—by location, industry, employer,

supervisors, or something else. Each of these frames

will affect who is the majority. And which frame is

chosen will arbitrarily affect the viability of Title VII

plaintiffs’ claims.

Take sex: women are the majority in the United

States, though not in some states, but still in some

counties within those states—see the map below. 10

Women dominate certain industries—like nursing

and teaching—and are a tiny minority in others—like

construction. 11 And, of course, within an industry,

every company—and division within a company,

decisionmaker within a division, or potential

comparator employee—may have different sex

breakdowns. Choosing one frame—say, the county

level—will mean that the happenstance of a dividing

county line results in two otherwise identical Title VII

plaintiffs with otherwise identical claims being

treated differently by courts.

10 See U.S. Census Bureau, Age and Sex Composition: 2020, at 2,

8 (May 2023), https://perma.cc/J2JA-9Z8P.

11 See U.S. Dep’t of Labor, Occupations with the Largest Share of

Women Workers (Apr. 2024), https://perma.cc/EL26-5JKN; U.S.

Dep’t of Labor, Occupations with the Smallest Share of Women

Workers (Apr. 2024), https://perma.cc/7TR9-2L4Y.

Male/Female Ratio by County: 12

The same is true of race: are black employees in

Detroit (about 78% black 13) subject to a presumption

of non-discrimination because they are in the

“majority”? And with race, the underlying problems

are more severe because there are more than two

races—and even defining a particular race can be

challenging. So before figuring out the right frame of

reference, courts need to decide how to define races,

how to handle places (or industries or employers) with

only a plurality of a particular race, whether any races

should be aggregated, and many other intractable

12 Male/Female

Ratio by US County, Reddit (2024),

https://tinyurl.com/47a75d4s (citing U.S. Census Bureau, County

Population by Characteristics: 2020-2023 (June 27, 2023),

https://tinyurl.com/3rnjkvha).

13 U.S. Census Bureau, QuickFacts: Detroit City, Michigan,

https://perma.cc/XZR3-ZNZL.

questions. For instance, by 2022, in 152 counties “no

racial group [wa]s more than half the population, up

33% since 2010.” 14 Racial categories also tend to be

“imprecise in many ways” and are often “overbroad”

and “arbitrary.” Students for Fair Admissions, 600

U.S. at 216; see id. at 291–93 (Gorsuch, J.,

concurring). Courts should not put themselves in this

“sordid business” of “divvying us up by race.” League

of United Latin Am. Citizens v. Perry, 548 U.S. 399,

511 (2006) (Roberts, C.J., concurring in part,

concurring in judgment in part, and dissenting in

part).

These problems are worse still with religious

claims. There, courts would have to decide both the

plaintiff’s religion and how the plaintiff’s expression of

religious beliefs compares with everyone else in

whatever arbitrarily chosen frame of reference is

being considered. Again, the map below suggests a

diversity of religious beliefs across counties. While it

would be easy to say “Christian = majority,” it would

also be wrong, even putting aside that the statement

may not be true at all in many places or companies.

For instance, as with all religions, not all “Christians”

consider other self-proclaimed “Christians” to be

“Christians.” How are courts supposed to decide who

is right? How are courts supposed to decide the actual

religious beliefs of some “majority”? And how are they

supposed to do all this without colliding with the First

Amendment’s

prohibition

government

14 T. Henderson, More US Counties Lack a Clear Racial Majority

(And People Are Getting Along Pretty Well), Stateline (Dec. 5,

2022), https://perma.cc/36JW-8RB6.

“entanglement in religious issues”? Our Lady of

Guadalupe Sch. v. Morrissey-Berru, 591 U.S. 732, 761

(2020). The Religion Clauses forbid “extensive inquiry

by civil courts into religious . . . polity,” Serbian E.

Orthodox Diocese for U.S. of Am. & Canada v.

Milivojevich, 426 U.S. 696, 709 (1976), and “the

judicial process is singularly ill equipped to resolve”

“[i]ntrafaith differences.” Thomas v. Rev. Bd. of

Indiana Emp. Sec. Div., 450 U.S. 707, 715 (1981). But

there is no way to decide whether the “background

circumstances” rule should apply to a claim of

religious discrimination without resolving complex

questions of religious faith and polity.

Largest Religious Group by County: 15

15 U.S. Religion Census, Maps and Data Files for 2020 (June 23,

2023), https://perma.cc/39M2-4CCF.

Of course, on the view of those who believe that sex

is a mutable, undefinable construct, it is equally

unclear how to determine any particular person’s sex

or what constitutes a majority or minority. The Ninth

Circuit, for instance, has suggested that “[t]he phrase

‘biological sex’ is” “imprecise,” because “[a] person’s

sex encompasses the sum of several biological

attributes, including sex chromosomes, certain genes,

gonads, sex hormone levels, internal and external

genitalia, other secondary sex characteristics, and

gender identity,” each of which may not “align[].”

Hecox v. Little, 104 F.4th 1061, 1076 (CA9 2024)

(emphasis added). The outgoing administration has

likewise characterized “sex” as “a complicated

biological concept” that includes “gender identity.” 16

The administration even argued that “assert[ing] that

a person’s sex ‘cannot be changed’” is so obviously false

that it betrays “animus.” 17 Hence its adoption of the

vacuous phrase “sex assigned at birth.” Pet. for Writ

of Cert. 18, 19, 20, United States v. Skrmetti, No. 23477 (U.S. Nov. 6, 2023). On this view, how to

determine a person’s (and all other persons’) sex, along

with the relevant majority/minority groups, would

pose quite the dilemma.

Regardless, the underlying point remains: The

“background circumstances” rule is incapable of

principled adjudication and depends on an arbitrary

trigger that has not been—and cannot be—adequately

articulated. And what trigger is applied arbitrarily

16 U.S. Resp. in Opp. to Mot. for Summ. J. 2, Boe v. Marshall, No.

22-cv-184, Doc. 627 (M.D. Ala. July 1, 2024).

17 Id. at 66.

discriminates between similarly situated Title VII

plaintiffs seeking the same thing: equal treatment by

their employers.

This case itself highlights some of these problems.

The courts below did not apply the “background

circumstances” rule to Marlean Ames’s discrimination

claim that she was terminated and “replaced by a male

employee.” Pet. 35a. The Ohio Department of Youth

Services conceded that she “stated a prima-facie case

as to this claim, because she was replaced by a man.”

Pet. 6a. As the district court said, “[i]t is undisputed,

after all, that Ames is a member of a protected class”

“as a female.” Pet. 35a (emphasis added).

The assumption of the courts and parties below

appears to be that “background circumstances” must

not apply to this claim because females have minority

status. But the U.S. Census estimated during the

relevant time frame that about 200,000 more women

than men lived in Ohio. 18 Likewise, females constitute

a majority in Franklin County, where Ames was

employed during the relevant time periods at the

Department’s Central Office in Columbus. 19 And one

of the two decisionmakers for the demotion underlying

this claim was a female. See Pet. 22a. It is not

apparent why the “background circumstances” rule

U.S. Census Bureau, Annual Estimates of the Resident

Population by Sex, Race, and Hispanic Origin for Ohio: April 1,

2010 to July 1, 2019, https://perma.cc/B3E7-PWU2.

19 U.S. Census Bureau, QuickFacts: Franklin County, Ohio,

https://perma.cc/86JX-F6TL.

would not apply to this claim—which only underscores

the impossibility of deciding when it does apply.

The courts below did apply the “background

circumstances” rule to Ames’s claim of sexual

orientation discrimination, reasoning that she “is

heterosexual” and “the relevant minority group” is

“gay people”—making her part of the majority group.

Pet. 5a. But Title VII prohibits discrimination based

on sex. Only as a derivative of this prohibition has this

Court

considered

the

statute

prohibit

discrimination based on sexual orientation. See

Bostock, 590 U.S. at 660 (“[I]t is impossible to

discriminate

against

person

for

being

homosexual . . . without discriminating against that

individual based on sex.”). In Bostock’s terms, denying

Ames a promotion “for no reason other than the fact

[s]he is attracted to men” “discriminates against h[er]

for traits or actions it tolerates in h[er] []male

colleague[s].” Ibid.

On this logic, the right majority/minority group

classification would seem to be male/female. Bostock

itself rejected the argument based on “ordinary

conversation” that “[i]f asked by a friend (rather than

a judge) why they were fired, even today’s plaintiffs

would likely respond that it was because they were

gay or transgender, not because of sex.” Id. at 666.

According to the Court, “these conversational

conventions do not control Title VII’s legal analysis,

which asks simply whether sex was a but-for cause.”

Id. at 666–67.

If that’s right, then the same “conversational”

description—that Ames was discriminated against

because she is heterosexual—should not control the

underlying Title VII analysis. Title VII covers only

“sex” and Ames is a woman, so the relevant groups

seemingly should be male and female. And,

notwithstanding the above, the courts below assumed

that females have minority status and need not prove

“background circumstances.” See Pet. 6a. So it is

unclear why they applied this heightened requirement

to a claim that must sound in sex discrimination. And

just as it is hard to escape the sense that the courts

that apply this requirement are making it up, it is also

hard to fault them: there are no neutral principles by

which the majority/minority trigger for “background

circumstances” can be decided.

Consider too amicus’s case on behalf of Randall Dill

against IBM, discussed above. IBM has dozens of

offices in the United States, all of which appear to be

subject to its racial balancing directives. And many

workers, like Dill, work remotely. If this Court were to

approve the “background circumstances” rule,

plaintiffs identically harmed by adverse employment

decisions stemming from IBM’s blanket policy would

face different legal standards depending on the

happenstance of their state, county, supervisor, or

whatever frame of reference is arbitrarily chosen to

analyze “majority” status.

Last, in some decisions applying “background

circumstances,” courts have premised the rule’s

application on the absence of “membership in an

historically disfavored group.” Livingston, 802 F.2d at

1252; see also Parker, 652 F.2d at 1017

(“[m]embership in a socially disfavored group”). But

the interplay between majority-minority status and

historically favored-disfavored status is neither

obvious nor explained. Are all “minority” groups

(using whatever frame of reference) across race, sex,

and religion historically disfavored? What about a

majority group that becomes a minority group—has it

been historically disfavored? What slice of history

matters? What type of “disfavor” matters? And how

are courts to decide the “artificially defined level” of

disfavor that matters? San Antonio Indep. Sch. Dist.

v. Rodriguez, 411 U.S. 1, 28 (1973).

As these questions suggest, the trigger inquiry

might well be different if the “background

circumstances” rule applies not based on majority

status but on historically favored status. But the

quandaries of applying this trigger would be even

more severe than the majority/minority test explored

above. Not only would courts need to decide what

frame of reference matters to historical status—

county, state, country, industry, institution—but they

would also need “to take on the unseemly task of

deciding which groups are ‘socially favored’ and which

are ‘socially disfavored.’” Collins, 727 F. Supp. at 1322.

So even if a test based on “historical favor” might

make somewhat more sense in terms of presumptions

about

employment

opportunities

than

bare

majority/minority status—though it would misjudge

cases involving, for example, the rise of DEI programs

in the last few decades—it would be even less capable

of neutral judicial resolution. The better approach is

to simply apply Title VII’s guarantee of equal

treatment, no matter the identity of the plaintiff.

CONCLUSION

For these reasons, the Court should reverse and

remand.

Respectfully submitted,