Reverse Discrimination

The term “reverse discrimination” is used when members of a majority or historically advantaged group (such as white or males) are discriminated against based on their race, gender, or sexual orientation. Due to a sharpened focus on race relations and increased social tensions on the topic of race, there has been a notable increase in reverse discrimination claims in employment.

Recent Reverse Discrimination Cases

  • In August 2022, a federal jury in North Carolina awarded $10 million to David Duvall, a white male executive of Novant Health, who claimed he lost his job due to efforts to diversify top leadership positions.
  • Joseph DiBenedetto, a 58-year-old white male, claimed he lost his job at AT&T because the company was disproportionately hiring female and non-white candidates in the finance department where he worked.
  • Diane Runkel, a 65-year-old white former employee of the city of Springfield, Illinois alleged reverse discrimination because she was denied a promotion when the Mayor of Springfield promoted a Black candidate working under Runkel’s supervision. Runkel cited the mayor’s statement that hiring a black woman for the position exemplified his administration “moving towards reflecting the city demographics.
  • An in-house lawyer with Electrolux sued the company, claiming he was denied a promotion to General Counsel due to a diversity initiative with an expressed preference for sex/gender as a “distinguishing and beneficial characteristic.”

Affirmative Action
It has always been the case that companies may not give preference to one race over another. In the workplace, voluntary affirmative action efforts are permissible only when they seek to remedy conspicuous racial or gender imbalances in traditionally segregated job categories, and they must be carefully tailored to avoid establishing quotas or inflexible goals. There has never been a gray line when it comes to discrimination in employment, as Title VII of the Civil Rights of 1964 makes it unlawful for an employer to
hire, discharge, limit, segregate, or classify employees or applicants for employment because of an individual’s race, color, religion, sex, or national origin.

Diversity, Equity, and Inclusion (DEI)
Many companies have announced specific hiring goals in response to heightened awareness of racial and gender inequalities. But some of those goals are now being challenged as impermissible “reverse discrimination” as white male applicants are rejected in favor of persons of color or women. Companies also run the risk that diversity training may be used as evidence of reverse discrimination. A set of slides at a Coca-Cola diversity training read: “Try to be less white” and “To be less white is to be less oppressive, less arrogant, less certain.” Similarly, the city of Seattle’s Office of Civil Rights sent an e-mail inviting “white city employees” to attend a training session on “Interrupting Internalized Racial Superiority and Whiteness,” a program designed to help white workers examine their “complicity in … white supremacy” and “interrupt racism in ways that are accountable to black, indigenous and people of color.” Progressive intentions aside, this type of labeling could be viewed as racially antagonistic and potentially support claims by white employees or applicants alleging a discriminatory preference in favor of persons of color.

The Supreme Court and Reverse Discrimination
The Supreme Court’s majority and concurring opinions in SFFA v. Harvard/UNC has provided fuel for reverse discrimination litigation in the workplace. Chief Justice Roberts wrote for the majority that “a benefit provided to some applicants but not to others necessarily advantages the former at the expense of the latter.” In his concurrence, Justice Gorsuch similarly observed, “it is never permissible to say ‘yes’ to one person but to say ‘no’ to another person even in part because of the color of his skin.” And Justice Thomas declared, “under our constitution, race is irrelevant.” Given this current legal landscape, employers must be cautious in creating and executing their DEI efforts to avoid creating a petri dish for reverse discrimination cases. The last few years have seen an uptick in reverse discrimination cases. Given that the Supreme Court has endorsed the concept of reverse discrimination, buckle up because the floodgates for reverse discrimination litigation are now wide open.

To some, the very concept of “reverse discrimination” is offensive, given the systemic advantages of white persons. Professor Ibram Kendi, the author of How to be an Antiracist, a #1 New York Times Bestseller, advocates that “the only remedy to racist discrimination is antiracist discrimination.” While Professor Kendi’s insight might make sense from a public policy perspective, it must be emphasized that a good faith attempt to mandate a threshold number of diverse hires may nonetheless invite claims of reverse discrimination.

How We Can Help
Pechman Law Group has handled several reverse discrimination cases. Lou Pechman has also authored an article on the impact of DEI initiatives on reverse discrimination lawsuits for Smerconish. If you believe you may have a reverse discrimination claim, please contact the attorneys at Pechman Law Group at 212-583-9500.

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