The Reverse-Discrimination Trap

Article excerpt

An ironic aspect of a reverse-discrimination claim is that it's often the result of an employer's attempt to honor diversity. A company wants more women and people of color in the workforce, but white males feel that they aren't getting a fair shake. Karen L. S. Fine, an attorney with Jackson DeMarco & Peckenpaugh in Westlake Village, California, offers advice on this tricky area of employment law.

Under what type of law does reverse discrimination fall?

Reverse-discrimination suits can arise under Title VII or the 14th Amendment to the U.S. Constitution, basically providing that no state can deny equal protection of its laws to its citizens. Or the suits arise under the equal-protection clauses of state constitutions, prohibiting preferential treatment of certain individuals or groups. The categories are the typical ones you think of: race, sex, color, ethnicity. But when you're talking about reverse discrimination, it will usually arise under race or gender or age.

Considering that white males aren't a protected category, how do they bring 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 group is getting on the basis of their race or gender, then they've been discriminated against. They're receiving lesser or unequal treatment. So it's not a question of whether the person is in a protected category or not. It's an 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 agencies to pay attention to the patterns of the past and the opportunities of the future. So affirmative action has been attacked on many fronts for being a requirement that minorities or women be chosen preferentially over anyone else who has applied. The courts and the legislatures have been careful to say: "We're not telling you that you have to hire from these categories regardless of consideration. But we'd like you to consider goals for remedying past discrimination." It's not an automatic "You must have this many people of this race, and if you don't, you'd better go find someone even if they're not qualified."

Is there a cap on how much a plaintiff can sue for?

No. You can sue for anything. It could be lost wages, it could be costs you incur, it could be attorneys' fees. It depends on what happened in that particular instance. But if the plaintiff is asking for past damages, the court is going to be looking at whether the plaintiff would have received the benefit if race or another category was not considered. But some plaintiffs bring claims for prospective relief. In other words: I want the court to tell this employer or this agency that they may not apply this policy. In that case, the question is simply whether the plaintiff is able to compete equally. All he has to show there is that he's ready and able to apply for the benefit but is being prevented 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 use this 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, both equally qualified, can a company legally hire the black woman as part of an effort to promote diversity?

It's OK for companies to have goals of remedying past discrimination. If they 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 have said: "We're not going to allow you to have quotas of how many you're going to select, but you can have goals of remedying otherwise unlawful conduct." So if a company has discriminated in the past and prevented otherwise qualified people from joining the company or bidding on a project, then that company can start making efforts to reverse that now. …