EEOC to Dismantle Identity Politics After Supreme Court Ruling

A day after the U.S. Supreme Court’s landmark decision making it easier for majority groups, including straight people, to bring anti-discrimination claims, acting U.S. Equal Employment Opportunity Commission (EEOC) Chair Andrea Lucas welcomed the decision and promised the agency would dismantle identity politics.

The Supreme Court in Ames v. Ohio Department of Youth Services clarified “that discrimination on the basis of a protected characteristic is unlawful discrimination, no matter the identity of who engaged in the discrimination or which workers were harmed or benefited,” she said on June 6.

In Ames, the Supreme Court rejected the “background circumstances” test, a judge-made doctrine adopted by several circuit courts, Lucas noted. The background circumstances test had required majority-group plaintiffs to show that their employer was the unusual employer who discriminates against the majority.  She said the court correctly concluded that this test was contrary to the plain text of Title VII of the Civil Rights Act of 1964, as well as the court’s precedents.

The EEOC’s Commitment

Lucas promised that “under my leadership, the EEOC is committed to dismantling identity politics that have plagued our employment civil rights laws by dispelling the notion that only the ‘right sort of’ plaintiff is protected by Title VII. In the wake of Ames, there can be no more confusion.”

She said that following Ames, the “flawed” background circumstances test no longer shields employers — including large companies — “from any race or sex discrimination that may arise from employers’ DEI [diversity, equity, and inclusion] initiatives.”

Toolkit: SHRM’s BEAM Framework

Action Steps

Employers should take several actions in response to Ames, recommended Jonathan Segal, an attorney with Duane Morris in Philadelphia and New York City: 

• Assess inclusion and diversity initiatives to confirm they do not exhibit favoritism toward minority groups or exclude majority groups. These types of unlawful biases or exclusions are more likely to face challenges from majority-group employees, who will have a higher awareness of their legal rights as a result of the case. 
• Review management training programs on discrimination and harassment to ensure fairness and objectivity. Do not relegate discussion of discrimination or harassment against majority groups to an afterthought. For instance, when addressing discrimination, clearly state that it is equally unlawful to discriminate against men or women. In harassment training, carefully consider the examples that are used. Avoid portraying all perpetrators as majority-group members and all victims as individuals from minority groups. 
• Reassess the approach to managing legal risks. Specifically, do not overlook the potential for claims by majority-group employees stemming from adverse employment actions. For instance, offering less procedural fairness to a white man under the mistaken belief that he is not part of a protected class could lead to unequal treatment that forms the basis of a disparate-treatment claim. 

Discrimination Will Be Rooted Out 

Thoughtful employers will review their policies in light of the Ames decision, Lucas said. And the EEOC will help employers comply. 

“But where necessary, the agency also is prepared to root out discrimination where it remains entrenched,” she said.