Reverse Discrimination Claims – When Trying to Do the Right Thing May Backfire

Can an employer get into legal trouble for making an effort to hire more females and minorities? Maybe. Talk about being between a rock and the hard place...

Can an employer really get into legal trouble for going out of its way to seek diversity in the workplace by hiring more females and minorities? To the surprise of some employers, the answer is yes, it could happen. In particular, employers should be aware that discrimination laws like Title VII prohibit hiring and certain other employment decisions motivated by sex, race, etc. These requirements create certain "protected classes" of employees and applicants, consisting of females and certain minority groups. However, the basic premise of discrimination statutes is that an employer cannot make employment decisions on account of race, sex, or any other identified characteristic. While this typically refers to making decisions against a member of a protected class, what happens if the employer makes a decision for a member of a protected class and in so doing rejects an equally or better qualified candidate who is not in the class (typically, a white male)? That white, male candidate could make a claim of "reverse discrimination."

Actually, "reverse discrimination" is a poor choice of terminology, because what discrimination laws make unlawful is any sort of discrimination based upon a characteristic like sex or race. Therefore, when a white applicant is denied a job so that a lesser qualified minority applicant can be hired, or when a male employee is denied a promotion so that a lesser qualified female employee can be promoted, it is arguable that there has been "discrimination" because of sex or race, and there is no need to label it "reverse" discrimination. It just happens that the employment discrimination has occurred against a member of the majority class, rather than against a minority class. Still, the term "reverse discrimination" has achieved a popular understanding and continues to be used by many courts.

Stating a claim. In typical race and sex discrimination cases, the employee or applicant must show that he or she was in the protected class (the racial minority, or a female), that he or she was qualified for a given job, that he or she was rejected for the position despite being qualified, and that thereafter the employer hired or promoted a non-minority or a male with no better qualifications. The anti-discrimination statutes were passed in part because the legislature determined that there had been a historic pattern of discrimination against racial minorities and women, and the statutes were designed to remedy this persistent problem.

There has been no long-standing, prevailing problem with employers rejecting white, male applicants or employees. Therefore, in reverse discrimination cases, some courts require an employee or applicant to prove more than the fact that he is white or a male in order to state a claim. Instead, the employee must demonstrate additional "background circumstances" supporting the proposition that the employer is that "unusual employer" who discriminates against the majority. For example, a white applicant or employee may show that the employer has some particular, specific reason or an identifiable inclination to discriminate against whites or males (e.g., its employment decision-makers are predominantly minorities or females, or there is some historical over-representation of minorities or whites among successful candidates), or that there is something else "fishy" about the circumstances which would warrant an inference that discrimination has occurred (e.g., a comparison of qualifications shows the plaintiff was a clear-cut leader for the position).

Affirmative action plans. Some employers are subject to federal law requiring the employer to put in place an "affirmative action plan." Typically affirmative action plans are required of employers who work on government contracts, as well as employers who, in the past, have been found to have violated non-discrimination laws. Affirmative action plans require covered employers to look at statistical data concerning the number of minority job candidates available in the local labor pool, then attempt to implement goals of making certain that a corresponding percentage of their workforce represents those minorities. Affirmative action plans are supposed to represent goals, not quotas on the actual number of employees who must be hired in each minority group.

If an employer is subject to an affirmative action plan, then that plan can be at least a partial defense to reverse discrimination claims, depending upon the circumstances. However, even being subject to affirmative action plan requirements is not an absolute defense against reverse discrimination claims. An employer subject to affirmative action plan requirements is really tracking statistics and making certain that information about job openings is placed in the hands of qualified minority applicants. But there is a difference between providing more information to members of the job pool, versus selecting employees based on race.

Recent examples. Why bring up reverse discrimination now? Don't employers already have enough to think about?

The reason is that unlawful discrimination based on race or sex, even discrimination against a majority applicant in favor of a minority applicant, can be a costly mistake. Moreover, even when the employer prevails in a discrimination lawsuit, that result usually comes at a significant cost.

For example, in late May, 2003, a Tennessee frozen food company negotiated a settlement with the U.S. Department of Labor to pay $125,000-plus to more than 300 black and white job applicants who were rejected in favor of Hispanic workers, plus the company must offer those rejected applicants jobs as general laborers. Census figures showed that about 5% of Crockett County's population is Hispanic, but Pictsweet Frozen Foods near Jackson, Tennessee, which employs more than 500 workers, had a grossly disproportionate number of Hispanic workers. In this case, members of one minority were given unlawful preferences over members of another minority and white applicants.

Perhaps more frightening is a case arising out of Atlanta. In June, 2003, the Eleventh Circuit Court of Appeals affirmed a judgment of $16.8 million against the Fulton County library system in a case of reverse race discrimination. In that case, seven white librarians claimed they had been transferred from their jobs at the central library to dead-end jobs at branch libraries because of their race, while the employer claimed that the transfers were part of an overall reorganization plan. The jury found for the white librarians and awarded compensatory and punitive damages, and last month, the Court of Appeals affirmed the $16.8 million judgment. The Court noted that the employer had not only discriminated unlawfully, but had also used trickery and deceit to cover up its actions under the guise of a reorganization.

Lessons. In hiring and promotion decisions, employers should be careful to document the basis for their decisions. If an employer can back up its decisions with legitimate business reasons (e.g., here is what we were looking for, here are the applications or resumes, here is why we made the decision), the employer has the groundwork to defend any discrimination claim, reverse or other.

View all articles by Bob E. Lype