Over the past few decades, employers have increasingly attempted to recruit diverse workforces. The benefits of such policies cannot be overstated—in an increasingly globalized economy, companies with diverse workforces are probably better positioned than those lacking such workforces.
While policies promoting diversity clearly provide benefits, employers must take care not to take these policies too far. If they do, they may engage in reverse discrimination. Reverse discrimination is discrimination against the majority group, which in the United States means the white population. Reverse discrimination is illegal, a violation of Title VII of the Civil Rights Act of 1964. The number of reverse discrimination claims has been rising in recent years.
Reverse discrimination occurs when an employer takes a negative employment action against someone because he or she is white. Refusing to hire, demoting, refusing to provide equal pay, or treating an employee differently because he or she is white are all examples of reverse discrimination. The Supreme Court has made it clear that discrimination against whites is just as illegal under Title VII as discrimination against minorities.
To prove reverse discrimination, a plaintiff must show either that the employer implemented policies to purposefully discriminate against whites, or that the employer’s policies negatively affected whites more than other racial groups. In order to prove that an employer’s policies disparately affected whites, a plaintiff must provide evidence of the circumstances surrounding the alleged discriminatory conduct, showing that race is the primary reason for the disparate treatment, and not some other factor.
For example, an employer’s statement that a white applicant was denied a job because the employer wanted to hire a minority candidate, even though the minority candidate was less qualified, has been held to be reverse discrimination. A case in which a black employee was given a more lenient punishment than two white employees when all three employees were caught stealing has been held to be reverse discrimination.
There is, however, one important exception to reverse discrimination: affirmative action programs. The Supreme Court has made it clear that certain types of affirmative action programs do not give rise to a claim of reverse discrimination. Plans that seek to rectify a “manifest imbalance” in a “traditionally segregated” job category and do not “unduly trammel the interests of the majority” are valid and will not give rise to a claim of reverse discrimination.
Taking these factors into consideration, courts have generally found plans that are limited in duration and do not absolutely bar the advancement of white employees or applicants to be valid. These plans must seek to eliminate a wide racial imbalance. They cannot, however, attempt to maintain racial balance or impose a quota system for particular racial groups. Moreover, the plan cannot require white employees to be fired or demoted so that minorities can take their place.
Ultimately, well-intentioned employers seeking to promote diversity may find themselves facing reverse discrimination claims if they do not have carefully craft their affirmative action programs. It is probably worth having an experienced attorney review any affirmative action program to ensure that it will not give rise to a claim of reverse discrimination.
