An ironic aspect of a reverse-discrimination claim is that it’s often theresult of an employer’s attempt to honor diversity. A company wants more womenand people of color in the workforce, but white males feel that they aren’tgetting a fair shake. Karen L. S. Fine, an attorney with Jackson DeMarco &Peckenpaugh in Westlake Village, California, offers advice on this tricky areaof employment law.
- Under what type of law does reverse discrimination fall?
- Reverse-discrimination suits can arise under Title VII or the 14th Amendmentto the U.S. Constitution, basically providing that no state can deny equalprotection of its laws to its citizens. Or the suits arise under theequal-protection clauses of state constitutions, prohibiting preferentialtreatment of certain individuals or groups. The categories are the typical onesyou think of: race, sex, color, ethnicity. But when you’re talking aboutreverse discrimination, it will usually arise under race or gender or age.
- Considering that white males aren’t a protected category, how do theybring suits?
- Reverse-discrimination suits are really treated as an equal-protection issue.If anybody is not getting the same benefits that somebody else in another groupis getting on the basis of their race or gender, then they’ve beendiscriminated against. They’re receiving lesser or unequal treatment. So it’snot a question of whether the person is in a protected category or not. It’san equal-protection analysis: everybody must get the same benefit.
- How does reverse discrimination tie in to affirmative action?
- Affirmative-action programs look at statistics, asking governmental agenciesto pay attention to the patterns of the past and the opportunities of thefuture. So affirmative action has been attacked on many fronts for being arequirement that minorities or women be chosen preferentially over anyone elsewho has applied. The courts and the legislatures have been careful to say: “We’renot telling you that you have to hire from these categories regardless ofconsideration. But we’d like you to consider goals for remedying pastdiscrimination.” It’s not an automatic “You must have this many people ofthis race, and if you don’t, you’d better go find someone even if they’renot qualified.”
- Is there a cap on how much a plaintiffcan sue for?
- No. You can sue for anything. It could be lost wages, it could be costs youincur, it could be attorneys’ fees. It depends on what happened in thatparticular instance. But if the plaintiff is asking for past damages, the courtis going to be looking at whether the plaintiff would have received the benefitif race or another category was not considered. But some plaintiffs bring claimsfor prospective relief. In other words: I want the court to tell this employeror this agency that they may not apply this policy. In that case, the questionis simply whether the plaintiff is able to compete equally. All he has to showthere is that he’s ready and able to apply for the benefit but is beingprevented from doing so because of some discriminatory policy. And in that case,the plaintiff is simply asking the court to tell the company they can’t usethis policy to prevent the person from applying for this benefit.
- So, if a hiring process comes down to a black female and a white male, bothequally qualified, can a company legally hire the black woman as part of aneffort to promote diversity?
- It’s OK for companies to have goals of remedying past discrimination. Ifthey have a workforce of 20 white males and they want a more diverse workforce,they’re certainly entitled to set goals. The courts and the legislatures havesaid: “We’re not going to allow you to have quotas of how many you’regoing to select, but you can have goals of remedying otherwise unlawful conduct.”So if a company has discriminated in the past and prevented otherwise qualifiedpeople from joining the company or bidding on a project, then that company canstart making efforts to reverse that now.
- How do the courts advise proceedingin this area?
- Basically the courts are saying: “We’re going to allow you to do this,but we’re going to look at it very closely. You need to tell us exactly whyand how there’s been discrimination in the past.” It’s not enough to saythat black people have been discriminated against in the past and therefore we’regoing to try to hire them. HR has to be able to show very specifically that aparticular person or category of person has been discriminated against by thesemethods, in this situation, at this agency, or by this bid process, and this ishow you’re going to remedy that. Your program has to be very narrowly tailoredto meet that goal. You can’t just say: “We’re going to start looking forminorities.” And it has to be somewhat limited in scope and duration. If youhave some plan as to how you’re going to remedy past discrimination, you can’tjust say: “From here on out, we’re going to make every effort to hireminorities and women.” It has to be very specific: “This is what we need toachieve, this is how long it will take to achieve it, this is how we’ll do it.”
- So affirmative-action programsare permissible?
- Affirmative-action programs are permitted to the extent that you’re lookingfor more information. You’re tracking statistics. You’re also permitted tomake sure you’re getting information out to underrepresented groups about howthey can apply for a position. What you can’t do is prefer them over others.One case talked about how you can’t have minority- and women-owned businessessign up on special lists, getting special notice of bid opportunities. You haveto make sure everyone has access to that–but you can certainly get thatinformation out to them and encourage them to participate. So it’s providingmore, not restricting. That’s going to be the biggest focus in areverse-discrimination suit. They’re going to be looking at whether you’rerestricting some category of person by preferring another, whether it’s aminority or a white person, whatever the case may be. If you are denying equaltreatment to anyone on any basis, you’re going to have a problem regardless oftheir category.
- Any final suggestions?
- In employment law in general and certainly in this area–especially in hiring–I always encourage employers to be very careful to document exactlywhat they’re looking at and what they’re basing their decision on. If awhite male has sued and said he was denied a job and a woman or black male gotit instead solely because of race or gender, the HR person needs to be able tosay: “Here’s their résumé, here’s what happened in the interview, hereare their background skills and knowledge, this is why we wanted this person.”If they can back up their hiring with a legitimate business reason for makingthat choice, they’re going to be okay.
The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion. Also remember that state laws may differ from the federal law.
Workforce, June 2003, pp. 106-107 — Subscribe Now!