Reverse-Discrimination Quiz: The Die-Hard Myths

September 8, 2014 1:34 pm

By John Bryson

John Bryson: The Reverse-Discrimination QuizChief Diversity Officer: “I propose that we adopt the following measures to significantly enhance our company’s diversity-and-inclusion performance.”

Chief Legal Counsel: “I don’t think so. That would be reverse discrimination.”

End of discussion.

“Reverse discrimination.” How many diversity initiatives have been shot down by those two words? It is impossible to measure, but those of us in the business have been fighting the battle for decades. Despite our best efforts to educate, the myth persists—a catchy phrase, no one seems to really understand what it means, but it is a real conversation stopper.

There is no statutory definition of reverse discrimination. Indeed, we have talked with EEOC representatives who avoid the phrase because of its inaccuracy. In their minds, discrimination comes in only one gear—not forward or reverse, just discrimination. Federal antidiscrimination laws cover “race” (including “white”) and “sex” (including “male”). Nonetheless, early case law adopted the phrase as a way of distinguishing allegations by white males from those for whom Title VII was primarily adopted—racial and ethnic minorities, and women. When the first white claimants brought their cases under civil-rights statutes, the courts ruled that they were covered too, but adopted the phrase “reverse discrimination” to describe those cases.

Thus, it is possible for companies to “reverse discriminate.” If a company decided it would not hire any white males under any circumstances, for example, that would be a clear case of “reverse” discrimination. But aside from such clear situations, most characterizations of diversity initiatives as reverse discrimination are false. Consider the following examples:

  1. Company sponsorship of employee resource groups identified by (but not exclusive to) race, ethnic and sex-based traits.
  2. Company objective to increase the percentage of minorities at the managerial level.
  3. Company requirement that hiring managers use best efforts to include minorities and females in all promotions pools.

None of these measures, taken alone, constitutes reverse discrimination. They might be used as evidence of reverse discrimination in a particular case, but alone, they are not discriminatory.

There is nothing wrong with considering the legal limits of corporate diversity measures. Indeed, such limits should always be taken into account. The problem comes when companies exaggerate the risk and forego beneficial diversity and inclusion actions that would likely reduce their risk of “traditional” discrimination claims.

Do you know the real risks to corporate America of reverse-discrimination claims? Take the following quiz, and find out. Answers appear at the end of this article.

Reverse Discrimination Quiz

  1. Do courts really use the phrase “reverse discrimination”?
    • [ ] Yes
    • [ ] No
  2. Can a non-disabled employee recover against his employer for reverse discrimination where the employer has implemented a strong preference for employing and advancing people with disabilities?
    • [ ] Yes
    • [ ] No
  3. Can a 30-year-old recover against his employer for reverse discrimination where the employer has implemented a strong preference for employing and advancing employees over the age of 40?
    • [ ] Yes
    • [ ] No
  4. Are there many claims for religious and national-origin reverse discrimination?
    • [ ] Yes
    • [ ] No
  5. Considering reported federal circuit court cases over the past five years, about what percent of reverse-discrimination claims were successful on appeal?
    • [ ] 90%+
    • [ ] 75%
    • [ ] 50%
    • [ ] 25%
    • [ ] Less than 10%
  6. Considering reported federal district court cases over the past year, about what percent of reverse-discrimination claims were successful at the trial-court level?
    • [ ] 90%+
    • [ ] 75%
    • [ ] 50%
    • [ ] 25%
    • [ ] Less than 20%
  7. In adjudicating reverse-discrimination claims, federal courts apply a different standard of proof from “traditional discrimination” cases.
    • [ ] True
    • [ ] False
  8. Successful reverse-discrimination cases are predominantly public-sector (against the government) cases.
    • [ ] True
    • [ ] False
  9. Name a class-action reverse-discrimination case with a whopping verdict or settlement.
  10. Name a class-action traditional discrimination case with a whopping verdict or settlement.
  11. Which of the following constitute reverse discrimination? (Circle any that apply.)
    • The CEO of a company tells the senior VP of HR that it would be nice if the candidate replacing the departing CFO is a minority.
    • A company’s diversity council establishes employee resource groups identified by racial/ethnic groupings (e.g., Hispanic Resource Group).
    • Company management establishes a policy that, for all future promotion vacancies, there must be at least one minority and one woman in the candidate pool.
    • Company management establishes a policy requiring “diversity and inclusion efforts” to be a bonus-dependent element of managerial performance reviews.
    • All of the above.
    • None of the above.

Answers

  1. Yes, routinely.
  2. No. There are no reverse-discrimination claims allowed under the Americans With Disabilities Act Amendments Act. See ADA Amendments Act of 2008, Section 6(A)(1)(G). But state laws may differ.
  3. No. There are no reverse-discrimination claims allowed under the Age Discrimination in Employment Act. See General Dynamics Land Sys. V. Cline, 540 U.S. 581 (2004). But state laws may differ.
  4. No. Very few. Most reverse-discrimination claims are based on: 1) race, and 2) gender.
  5. 7 percent. There were 41 cases reported from the 2nd, 3rd, 5th, 6th, 7th, 8th, 10th, and 11th circuits. 38 (93 percent) affirmed judgment for the employer (on motions to dismiss, summary judgment, etc.) Two cases (5 percent) for the employer were reversed/remanded for applying the incorrect legal standard or resolving a question of fact. One case (2 percent) upheld an award for a police officer subject to an 80 percent reduction in the award.
  6. Less than 20 percent (15 percent). Of 59 cases, 50 (85 percent) granted employers’ motions to dismiss or for summary judgment; two cases (3 percent) denied the motion to dismiss citing the liberal pleading standard; seven cases (12 percent) denied employers’ summary-judgment motions because of questions of fact; and no cases reported a monetary verdict or judgment.
  7. True. Most circuit courts, along with some state statutes, require a “heightened standard” or “higher burden” for so-called McDonnell Douglascircumstantial-proof analysis, replacing the “member of protected class” prong with a reverse-discrimination standard: “background circumstances exist to support the suspicion that the defendant is the unusual employer that discriminates against the majority.” (Circuits 3, 6, 7, 8, 10, D.C. apply this rule; Circuits 5 and 11 do not; Circuit 2 is uncommitted (district courts in the circuit are split), Circuits 4 and 9 have declined to address the issue.)
  8. True. As few as there are, the overwhelming majority of successful reverse-discrimination cases are in the public sector, e.g., Ricci v. DeStefano.
  9. We couldn’t find any either. Examples: “White Firefighters Awarded $2.5 Million in Discrimination Case” (City of Buffalo, March 30, 2012, promotions); Overton v. City of Ypsilanti, $162,500 settlement for white police officer (June 17, 2011, promotion); Luchak v. AutoZone, $44,500 verdict for white male assistant manager (February 15, 2010, termination). BUT, compare with “traditional” discrimination judgment: “Back Pay in FDNY Hiring Bias Suit Calculated at $128M,” Law 360, March 8, 2012 (class action by NYC minority firefighters).
  10. Amount Basis Year
    $192 Million Race 2000
    $176 Million Race 1996
    $160 Million Race 2002
    $128 Million Race 2012
    $104 Million Gender 1997
    $ 90 Million Gender 2004
    $ 80 Million Race 2005
    $ 54 Million Race 2007
    $ 54 Million Gender 2004
    $ 46 Million Gender 2007

    Subsequent to the DiversityInc article in which this chart appears, there was a $250 million verdict against another major company for gender discrimination.

  11. None of the above.

John M. Bryson II is a shareholder in the Washington, D.C., Regional Office of Jackson Lewis P.C. and a senior member of the Firm’s Corporate Diversity Counseling Group. He is a frequent speaker on the topic of diversity and inclusion, and is a professor teaching corporate diversity at the Georgetown University Law Center.

Weldon H. Latham and Michael R. Hatcher of Jackson Lewis P.C. contributed to this article.