Universities Under Attack for “Reverse Discrimination” in Employment

In the wake of the Supreme Court’s Decision in SFFA, several universities, like many other employers, have been sued for “reverse discrimination.”

Northwestern University’s Pritzker School of Law has been sued for alleged discriminatory hiring practices against white men. The “reverse discrimination” lawsuit was filed by the Faculty, Alumni and Students Opposed to Racial Preferences (FASORP), claiming that Northwestern favors hiring women and minority faculty candidates with “mediocre and undistinguished records” over better-qualified white male candidates.

The lawsuit against Northwestern Law is similar to other recent legal challenges to affirmative action policies in higher education, which asserts that Northwestern Law unlawfully mandates the preferential hiring of Black, Hispanic, Asian, women, and LGBTQ+ candidates, thereby excluding highly qualified white male applicants. For instance, Destiny Peery, an African American woman, was hired in 2014 as a tenure-track professor at Northwestern Law School. According to the complaint, Peery’s hiring was based on her identity as a black woman, despite concerns about her academic record which was described as “abysmal,” as she graduated law school at the bottom of her class. In contrast, the complaint claimed that Professor Eugene Volokh, a white man, was denied an interview based on his race and gender, even though he served as a professor at UCLA for 30 years, a co-founder of a popular legal blog, and former law clerk for Justice Sandra Day O’Connor. The complaint asserts that Northwestern Law prioritizes hiring women, racial minorities, homosexuals, or transgender individuals for faculty positions “even when they are less qualified and accomplished compared to white male candidates like Professor Volokh.”

In a similar vein, a white employee at the University of Wisconsin-Eau Claire has filed a federal lawsuit, alleging racial discrimination and claiming she was demoted from a leadership position in diversity, equity, and inclusion because of her race. The lawsuit points to faculty comments and concerns about the perception of having a white woman replace previous DEI leaders who were Asian and Black, which allegedly created a hostile work environment leading to her reassignment. For example, students, faculty and staff during an open house forum expressed that they “didn’t want white people overseeing spaces intended to service students of color” and that they “didn’t want a white women in charge.” The complaint specifically contends that criticism targeted her race and color rather than her qualifications, asserting that her identity as a white person was the primary issue at hand.

In De Piero v. Pennsylvania State University, et al., De Piero, a Caucasian Professor of English and Composition at Penn State sued the university for hostile work environment due to his race, stemming from antiracism trainings and initiatives mandated by the English Department. For example, In June of 2020, De Piero was required to attend a “Conversation on Racial Climate,” during which Penn’s Assistant Vice Provost for Educational Equity, Alina Wong, led the faculty in a breathing exercise in which she singled out whites and non-blacks to hold their breath in longer than their colleagues. She stated that whites and non-blacks were “privileged identities” and needed to “feel the pain” suffered by George Floyd and caused by systemic racism. She also pointed to various instances where white employees were condemned with phrases like “white elites” and “white self interest” and told that “there is a problem with the white race.” Penn State sought to dismiss De Piero’ s suit for failure to state a claim, however, the federal court held that he stated a plausible claim for hostile work environment, allowing his lawsuit to move forward. The court cautioned that “[w]hen employers talk about race – any race – with a constant drumbeat of essentialist, deterministic, and negative language, they risk liability under federal law.”

These cases illuminate ongoing challenges in balancing diversity initiatives with equitable treatment in the workplace. If you are facing similar issues or need legal advice on employment discrimination matters, contact the attorneys at Pechman Law Group at 212-583-9500.


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