The Trouble With Reverse Discrimination
NEWSLETTER VOLUME 2.15
|April 11, 2024
The Trouble With Reverse Discrimination
There's no such thing as reverse discrimination; there's only discrimination. If someone is discriminated against because of their race or gender, no matter what their race or gender, that's just straight up discrimination.
The term "reverse discrimination" came around during the civil rights and women's rights movements in the 1960's and 1970's to describe situations where someone in a majority group is rejected in favor of someone in a minority group based on a protected factor such as race or gender.
It's one of those places that is confusing both in practice and legally. The reality is that majority groups have been used to having an easier path, so when everyone has an equal chance, their path sometimes gets more competitive and they don't get chosen like they used to. For people facing a new reality, this is scary and feels like they are being harmed.
Nobody wants to give up the inside lane on the track. But it's not a fair race when some people get a head start.
Discrimination laws are about making sure the race is fair for everyone. But how do you do that in practice? It's difficult because the moment you encourage hiring people who are different than the ones you're used to seeing, the perception is that suddenly the new people have a new advantage. Suddenly people who would have sworn they never considered gender or race in their decision making are certain they are the victims of discrimination based on gender and race.
This is what progress toward equity looks like.
Change is uncomfortable. But some of us are more used to being uncomfortable than others. If you walk through the world with brown skin, race is part of your entire existence and every interaction you have. The same is true for people who are women, LGBTQ+, disabled, or who have any other attribute that can be perceived as different from the majority or people in power. We are our "otherness" first. Often, we are never seen or valued as ourselves, no matter what our experience and qualifications.
As I read about this case, I could see this difficulty in the arguments and evidence the courts focused on. A white male executive with great performance reviews was terminated, replaced by a woman, and there also started to be more people with brown skin working there. Discrimination or equality?
It depends on the situation, facts, and evidence. But the employer's biggest problem here may not have been it's DEI program. It was probably that it could not articulate a good reason for terminating a white, male executive. Discrimination or at-will employment?
We're going to see a lot more of this. And there will be valid discrimination cases brought by white men. But many will be based on the perception of "reverse privilege," that someone else got the inside lane that has always belonged to them. That is not discrimination.
A federal appeals court has affirmed a jury verdict awarding nearly $4 million in lost wages, benefits, and interest to a white male employee who based reverse discrimination allegations in part on circumstantial evidence related to DEI initiatives.
The decision highlights the importance to employers of vetting DEI initiatives under advice of counsel to ensure they are legally permissible. That kind of review can help companies promote diversity, equity and inclusion without creating undue risk in a climate of DEI backlash following the U.S. Supreme Court’s decision striking down race-conscious college admissions programs.
The Case In More Detail
The Fourth Circuit upheld a jury verdict recently in a case brought by David Duvall against his former employer, Novant Health Incorporated.
Duvall argued that his race and gender were motivating factors in his employer’s decision to terminate his employment. Particular DEI initiatives relied on by Duvall and noted by the Fourth Circuit included:
- A “widescale D&I initiative” to ensure that Novant Health’s workforce and leadership “reflect[ed] the communities [it] serve[d],” including by committing to:
- “[A]dditional dimensions of diversity to the executive and senior leadership teams[.]”
- “[I]ncorporating ‘a system wide decision-making process that includes a diversity and inclusion lens[.]’”
- “[I]dentifying and closing any remaining diversity gaps[.]”
- Data showing “a dramatic increase in female leaders” by 2019 (the year after Duvall was fired). The data also showed an increase in Black workers and leaders during the life of the D&I plan.
- “A long-term financial incentive plan that tied executive bonuses to closing gaps in the Hispanic and Asian workforce’ by achieving a specific percentage of each group.”
Other important evidence included the fact that Duvall had a record of exceptional performance, was told simply that the company “was going in a different direction” and was replaced by two women. In addition, Duvall’s manager (the company’s CEO) “offer[ed] shifting, conflicting, and unsubstantiated explanations for Duvall’s termination.”
The Fourth Circuit vacated the jury’s $10 million punitive damages award, however, for lack of proof that Duvall’s manager “perceived risk that [terminating Duvall’s employment would] violate federal law.”
Other Courts Weigh In
Other circuit courts are also taking notice of DEI initiatives in the context of reverse discrimination claims.
The Tenth Circuit recently wrote in its discussion of a hostile work environment claim that an employer’s DEI training was “troubling on many levels” and could “create hostile workplaces when official policy is combined with ongoing stereotyping and explicit or implicit expectations of discriminatory treatment.” The court noted that the DEI training could also “set the stage for actionable misconduct.”
The court ultimately found that a single instance of the objectionable training was not sufficiently severe or pervasive to create a hostile work environment. It provided examples, however, of when such training might, including if “the training occurred more than once” or if “supervisors threatened to punish or otherwise discipline employees who failed to complete or agree with the materials” or if “co-workers engaged in specific acts of insult or ridicule … aimed at [plaintiff] because of the training.”
What Employers Should Consider Doing
We are likely to see more cases like these, particularly in the wake of the Supreme Court’s decision in the college admissions case.
Now, however, is not the time to overreact, for reasons we recently noted. Rather, employers can work with counsel to review DEI initiatives, identify and refine practices that present legal risk and continue their commitment to promoting equal employment opportunity for all.
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