Good morning!
A new case in front of the Supreme Court could change the employment landscape for years to come, and the way that HR teams around the country do business.
On Wednesday, the court heard arguments presented by Marlean Ames, an Ohio woman who claims she was discriminated against after her job at a juvenile corrections facility was given to a younger gay man. Ames, who is straight, says she was also previously passed over for a separate internal role, which was given to a woman who identifies as lesbian, but had significantly less experience.
Traditionally, employment law has held that people from “majority groups,” including men, white people, and people who identify as straight, have faced a higher bar to prove that they are the victims of discrimination, compared to people from traditionally marginalized groups.
But the justices appeared receptive to arguments from Ames’s lawyers this week, the Washington Post reported, and multiple legal experts tell Fortune that they expect them to make a unanimous decision in Ames’s favor. Or as Raye Mitchell, an entertainment and employment law attorney puts it, “in their view, discrimination is discrimination” no matter who brings the case.
As a result, if the decision does go through, it will likely be easier for people who belong to majority groups to sue their employers for discrimination. “It’s going to become a lot easier for proponents who are anti-DEI to be able to prove their claims in court,” Chris Braham, a partner at McDermott Will & Emery’s employment practice group, tells Fortune.
It’s unclear if a Supreme Court decision in favor of Ames will result in more litigation. Jason Solomon, director of the National Institute for Workers’ Rights, a nonprofit think tank, says it’s already unlawful to make decisions about hiring, promotion and other aspects of work based on race, gender, or other protected characteristics, although he adds that employers will likely be willing to settle these cases for higher dollar amounts in the future.
Other lawyers, however, think there could be an uptick. “I think that any issue that gets a topic of conversation in the political and cultural world, and Supreme Court cases make that happen, will eventually bring more litigation,” says Camille Olson, co-chair of the national complex Litigation practice group at law firm Seyfarth.
Employers should already be treating employees fairly across the organization. But this case may spur bosses and HR leaders to double down on written documentation to justify why they’ve made a given workforce or employment decisions, especially when it comes to terminating employees.
“They’re just going to have to play a little more by the rule book. Until now, companies could terminate a white male and not have to worry about a potential lawsuit,” says Braham. “That’s no longer the case.”
Companies will also have to be careful to document how and why they’re promoting someone internally. When posting a job, business leaders should make sure that the position is open to everyone, and make sure to document their thinking throughout the selection process.
“I think as HR professionals, we’re going to have to rethink the way that we approach any type of employment decision that we make,” says Shannon Anderson, the founder and CEO of GritHR Solutions, a human resources consulting and outsourcing firm. “Any type of hiring, promotion practices, decisions to terminate any employment practice—we have to look to make sure it doesn't explicitly or implicitly favor one group over the other.”
Brit Morse
brit.morse@fortune.com
