Reverse discrimination claims often arise out of an employer’s attempt to honor either affirmative action programs or diversity initiatives focusing on attracting more women and minorities in the workplace. Lawsuits alleging reverse race discrimination generally fall under the rubric of Title VII of the Civil Rights Act of 1964, as amended, or the Fourteenth Amendment to the U.S. Constitution, depending on whether the employer is a private or a public entity. Suits also may arise under the equal protection clauses of various state constitutions or other state or local laws prohibiting discrimination on the basis of race, sex, color, ethnicity, and/or national origin.
Reverse discrimination is defined as discrimination against Whites or males in employment or education. Even as early as 1978, the U.S. Supreme Court made it clear that it does not support laws that provide for reverse discrimination in employment. The Supreme Court determined that it is not acceptable to discriminate against individuals regardless of their minority status when it decided that reverse discrimination is not acceptable either legally or constitutionally.
In reverse discrimination lawsuits, plaintiffs will claim that they are not being afforded the same benefits or opportunities that other individuals are being afforded on the basis of their race (Caucasian) and/or gender (male). This unequal treatment is against the law. Success of the suit is not dependent upon whether the individual is a member of a protected category; rather, the focus of the inquiry is on whether all individuals, regardless of race and/or sex, are afforded the same benefits and/or opportunities under the law.
Issues often arise regarding how reverse discrimination is related to affirmative action initiatives. Affirmative action programs analyze statistics and request that certain governmental agencies consider certain patterns of the past and opportunities of the future to attract women and minorities to the workforce. As a result, often an employer will give more favorable treatment to women and minorities in an effort to achieve certain affirmative action initiatives. Such action is not necessary and, in fact, is prohibited by the law.
To state a prima facie case of reverse discrimination, a plaintiff must “present sufficient evidence to allow a fact finder to conclude that [the employer] is treating some people less favorably than others based upon a trait that is protected under Title VII.” Iadimarco v. Runyon, 190 F.3d 151, 161 (3d Cir. 1999). The burden then shifts to the employer to articulate a legitimate, nondiscriminatory reason for the rejection or termination. Once a reason is articulated, the plaintiff must prove by a preponderance of the evidence that this decision is merely pretextual and that the real reason for the employment action is discriminatory.
The U.S. Supreme Court has recognized that an employer who discriminates will almost never announce a discriminatory animus or provide employees or courts with direct evidence of discriminatory intent. Accordingly, the Court fashioned the burden-shifting analysis to allow plaintiffs to proceed without direct proof of illegal discrimination where circumstances are such that common sense and social context suggest that discrimination has occurred. McDonnell Douglas, Inc. v. Green, 411 U.S. 792 (1973). In the “ordinary case,” where a minority plaintiff alleges race-based employment discrimination, the plaintiff “must carry the initial burden under the statute of establishing a prima facie case of racial discrimination . . . by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications.” McDonnell Douglas, 411 U.S. at 802.
Once the plaintiff establishes a prima facie case, “the burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason for the employee’s rejection.” Id. at 802. However, “the defendant need not persuade the court that it was actually motivated by the proffered reasons.” Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981). For purposes of defeating a plaintiff’s motion for summary judgment, “it is sufficient if the defendant’s evidence raises a genuine issue of material fact as to whether it discriminated against the plaintiff.” Id. If the employer offers some evidence of a legitimate, nondiscriminatory reason, then plaintiff must “be afforded a fair opportunity to show that [employer’s] stated reason for [plaintiff’s] rejection was in fact pretext.” McDonnell Douglas, 411 U.S. at 804.
Inasmuch as the first prong of this test requires plaintiffs to establish their identity as a member of a minority group, the literal application of the test would preclude its use by plaintiffs alleging reverse discrimination. In fact, the historical context of Title VII allowed for some debate as to whether Congress intended to extend its reach to practices that have come to be known as reverse discrimination. However, in McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 283 (1976), Justice Marshall, writing for a unanimous Court, stated: “The Act prohibits all racial discrimination in employment, without exception for any group of particular employees.” Thus the dictates of Title VII “are not limited to discrimination against members of any particular race [and Title VII] proscribe[s] racial discrimination in private employment against Whites on the same terms as racial discrimination against nonwhites.” Id. at 278-79,280. No doubt because of this country’s history of race relations, most Title VII plaintiffs have been members of a minority group, and the first prong of the McDonnell Douglas test was stated in the context of that history. However, the holding of Santa Fe Trail as well as the language of McDonnell Douglas itself clearly establishes that the substance of the burden-shifting analysis applies with equal force to claims of reverse discrimination. Accordingly, reverse discrimination plaintiffs must show that the challenged employment action was based upon a protected characteristic (i.e., their race or their sex), regardless of what that characteristic may be.
- Andrioff, J. L. 2003. “‘Reverse Discrimination’ Lives under the Age Discrimination in Employment Act.” Benefits Law Journal 16:112-122.
- Gullett, R. G. 2000. “Reverse Discrimination and Remedial Affirmative Action in Employment: Dealing with the Paradox of Nondiscrimination.” Public Personnel Management 29:107-118.
- Hofemeister, T. 2003. “Is Age-based ‘Reverse Discrimination’ Acceptable in the Workplace?” Monitor on Psychology 38:66.
- LaPointe, M. K. and Fogarty, J. G., Jr. 2004. “A ‘Means to an End’: The Cline Court’s Pragmatic Refusal to Allow Reverse Discrimination under the ADEA.” Labor Law Journal 55:85-98.