I am not an attorney and as you can tell from my pub photo above, I am not good-looking enough to play one on TV. But, even without legal credentials, I can foresee the risks associated with the recent Supreme Court decision in Ames v. Ohio Dept of Youth Services. For previously overzealous “DEI” programs, the ruling creates a new risk of potential grievances and litigation.
For a bit of background, Marlean Ames worked for the Ohio Department of Youth Services. She is a heterosexual white woman. She sued the State of Ohio saying she had first been passed over for a promotion. The job she sought was given to a gay co-worker, and Ames was, subsequently, also demoted according to her complaint. The Federal Sixth Circuit found for the State of Ohio saying that as a member of the majority class, she had to show “background circumstances” in the pattern of discrimination to press the claim. The Federal Sixth Circuit referenced previous jurisprudence requiring plaintiffs in reverse discrimination cases to clearly prove, or at least show a pattern, demonstrating that their employer had a reason or intent to discriminate against a majority group.
We all know the very argument that, in order to achieve “equity” in social justice terms, employers needed to advance quotas and show favoritism to previously disadvantaged groups, had been a backdrop of much of the “DEI” debate since that acronym became popular.
I have previously written my opinion on DEI. I think diversity and inclusion are critical to business success for a number of good reasons that mean good business. I disliked the insertion of the “E” because the definition of equity is too nebulous. For the social justice warriors on the left, it meant choosing previously disadvantaged minorities in an effort to redress past bad behaviors. For the social justice warriors on the right, it meant reverse discrimination. For once, both sides agreed, however, that most HR executives knew either extreme was illegal under Title VII. HR leaders tried to gingerly navigate the topic while addressing the social issues that arose in the wake of the murder of George Floyd. However, some HR departments did go over the line into discriminatory behavior under Title VII. It seems the Ohio Department of Youth Services was one of those programs.
However, the Supreme Court struck down that standard and found that, under Title VII of the Civil Rights Act, Ohio had violated her rights by taking anything other than qualifications into consideration. Moreover, she did not need to prove that there were background circumstances. The unanimous decision was authored by Justice Ketanji Brown Jackson, perceived to be one of the more liberal justices. The Court has spoken, and it has spoken clearly. What does this mean for HR?
First, CHROs and general counsels need to get control of any DEI programs that do not report to HR. That was a recent trend that should never have happened. Second, any program that allows any form of discrimination against anyone, whether in the minority or majority, needs to end. It is disturbing to even suggest discrimination against minorities still exists, but let’s live in the real world. It does. But we cannot allow discrimination in the other direction either.
In addition, prior actions for promotions, suspensions, terminations, or other employment actions may need to be reviewed to ensure that proper documentation exists because this could open the flood gates on reverse discrimination claims by the majority members who feel aggrieved. Also, the standard of proof for those cases is now lower to bring an action that sustains itself.
The pendulum of “DEI” (can we go back to calling it D&I, please?) did swing too far out to the edge, and now the price of that period may be a rash of lawsuits and a lot more work for HR.
Elliot S. Clark
CEO
