David Harmon: Hi, I’m David Harmon.
Mariya Gonor: And I’m Mariya Gonor.
David Harmon: And we are the employment strategists.
Mariya Gonor: Today, we’re discussing a major development in the world of employment law. More specifically, a significant change with respect to reverse discrimination standards.
David Harmon: So, the Supreme Court handed down a decision on June 5th in AIMS via Ohio Department of Youth Services, and that case was a nine-to-zero decision by the court and the decision was authored by Justice Kanji Brown Jackson.
Mariya Gonor: The decision essentially alters the standard that a plaintiff who belongs to a majority group needs to establish in order to show discrimination. Historically, the plaintiff had to show that the employer is in some way unique. What does that mean, David?
David Harmon: Unique stands out from the general population of the employees, someone different, disparate, someone who is diverse.
Mariya Gonor: So, let’s share the facts of the case with our listeners.
David Harmon: Very well, so this was a situation where a heterosexual woman brought a claim based on discrimination due to her heterosexual sexual orientation.
Mariya Gonor: What happened was, or what she alleged happened, was that she was passed over for a promotion in favor of a lesbian woman, and then she was demoted and ultimately replaced by a gay man. She argued that because she was straight, that was a discrimination on the basis of her sexual orientation. The lower court found that she did not meet the necessary threshold to show that the employer was in some way unique or discriminated against the majority. The Sixth Circuit ultimately agreed.
David Harmon: So here in essence what this does. Is this says that there’s no such thing anymore as reverse discrimination, that there is just discrimination.
Mariya Gonor: And it actually, the reasoning that the court used here makes sense. They focused on the language of the statute and said that discrimination on the basis of race or sex, or gender, is prohibited and that the statute is actually silent as to whether what race it has to be. Simply, if a decision is motivated by some protected characteristic, it’s improper and unlawful.
David Harmon: So now, when we are presented with potential discrimination claims, we’re going to have to look at it a little bit differently. We’re gonna have to widen the lens so that we can cover more territory in terms of our analysis. How do you think, what do you think we would do in that situation? What would, what are the questions that we might ask, which are broader than what we typically ask now?
Mariya Gonor: Well, absolutely. When we have white men who have been terminated come to us and ask for help with respect to a claim for discrimination. Generally, we have to inquire into the background circumstances, right? We have to see whether the, there was some kind of diversity, equity, and inclusion program that impermissibly considered race as a factor, or whether the decision maker was motivated by some animus towards white people, or whether the employer was as a case in our state, a unique employer where white people were in the minority versus the majority. Now, though, all of these inquiries are no longer relevant, and the only relevant inquiries whether or not the decision was made because of somebody’s gender, sexual orientation, or skin color.
David Harmon: Well, right now this, the impact of this case is gonna be that it affects employers in 20 states at a minimum, but it will have a national impact in the employment law landscape.
Mariya Gonor: Absolutely. Especially when it’s considered along with the administrative executive orders that have been passed down back in January and we have an episode that covers them quite in depth but.
David Harmon: Having to do with DEI.
Mariya Gonor: Correct, yes. A number of orders have made or proclaimed that certain DEI programs are no longer lawful, and the EEOC has also issued guidance addressing when a DEI program is no longer lawful. So, combining these factors together makes it very difficult for employers to continue to maintain promotional decisions based on diversity, equity, and inclusion.
David Harmon: So, I think we should talk about how this impacts employers and employees. Why don’t you start with the employers?
Mariya Gonor: Well, with the employers, it’s quite easy. Exactly what I just said. Take a look at whatever. Diversity, equity, and inclusion programs you have, if they consider race as a factor, it is no longer a program that you can legally use. If you continue to utilize such program, you could be exposed to significant potential liability.
David Harmon: There also should be new training. Employers have to look at their training programs. Issues of bias, discrimination, prejudice, all have to be looked at now because now the, the potential, the population, in essence, has been increased in terms of who is a potential plaintiff.
Mariya Gonor: And as we consider training and the policies, we also have to consider a handbook. Take a look at your handbooks and make sure that your EEO policies appropriately utilize the language that copies the language of the statute rather than something else.
David Harmon: In addition, when an employer is making a decision as to whether, an adverse employment decision is going to be discriminatory in nature. The number of considerations, the demographics of the people being terminated is gonna be across the board.
Mariya Gonor: Absolutely. Now, what about employees?
David Harmon: Well, employees now are in a better position. They’re going to be more plaintiffs. There are going to be more individuals who are going to look at what has occurred in terms of termination, discrimination, or whatnot, but they’re gonna be able to evaluate it with greater tools at hand.
Mariya Gonor: For sure. I expect that we’re going to see a lot more litigation that alleges would basically used to be reverse discrimination, but now we’ll focus on discrimination against the majority groups. Employees also should be mindful of their state law because this decision affects federal law, and certain states continue to have the higher threshold of proof in cases of reverse discrimination.
David Harmon: So, this is really an earth-shattering decision by the Supreme Court, and it’s gonna have a major impact on employers and employees. If you have any comments we would appreciate or questions, we’d appreciate you leave those below. Thank you.