Employment: A Reminder About Reverse Discrimination

03.01.10

[T]he important purpose of Title VII [is] that the workplace be an environment free of discrimination, where race is not a barrier to opportunity.

This is the statement of the United State Supreme Court from its 2009 opinion in Ricci v. DeStefano. The Ricci case, if you remember, involved the white firefighters and one Hispanic firefighter who sued the City of New Haven, Connecticut, for reverse discrimination in its promotional practices. Unfortunately for the newest Supreme Court Justice, Sonya Sotomayor, who had ruled in favor of the City while serving as a judge on the United States Court of Appeal for the Second Circuit, the Supreme Court found in favor of the firefighters. The Court concluded an employer may only take race-conscious action under very narrow circumstances. How does this translate into everyday policy for employers? You should not take race into account as you decide who to hire, fire or promote. Period.

Reverse discrimination occurs when an employer favors an employee from a minority race when making an employment decision over a person from the majority solely on account of his or her race. In a typical Title VII discrimination case, an employee must at least be able to demonstrate four factors: (1) he was a member of a protected class; (2) he was qualified for the job; (3) despite his qualifications, he was discharged; and (4) the job was not eliminated after his discharge.

The courts of appeal are a little split on how those factors transfer to a reverse discrimination case, but the Tenth Circuit, which handles cases from Oklahoma, has held that "instead of demonstrating that the plaintiff is a member of protected class, he must instead 'establish background circumstances that support an inference that the [employer] is one of those unusual employers who discriminates against the majority."

Noticeably missing from these factors is any requirement of bad intent on the part of the employer. As the City of New Haven discovered, you cannot take race conscious action, even if your intentions are good. Attempting to foster a diverse work environment or setting goals for hiring and promoting a certain number of minority employees each year is not sufficient reason to base an employment decision on someone's race. As noted by the Supreme Court in Ricci, an employer can intentionally discriminate based on race to avoid (1) past discrimination or (2) unintentional disparate impact, but ONLY if the employer has strong evidence indicating it will be liable if it fails to take this race conscious action. In other words, even if your intentions are good, you better have a really good reason (and statistical evidence to back it up) for basing an employment decision on someone's race. If an employee can demonstrate that you the employer would have made a different decision if it had not been for his/her race, you will be liable, no matter what the race, no matter what the intention.

Though rare, reverse discrimination cases are a real threat, and as an employer, it would behoove you to keep them in mind when formulating company policy and making individual employment decisions.

By Amanda L. Thrash, athrash@dsda.com

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Rebecca D. Bullard

Rebecca D. Bullard

Rebecca represents clients primarily in labor and employment litigation and counsels clients regarding everyday employment matters. 

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