Yes, “Reverse” Discrimination is Illegal

Earlier this year, I attended an employment law seminar.  One of the topics dealt with the issue of “reverse” discrimination.   The presenter, a well respected African-American attorney, began his presentation by stating that the reason he went to law school was so he could represent white people in discrimination cases.    While it was not clear whether the speaker was making an attempt at humor or sarcasm, the comment reflected a mixed emotion that sometimes arises with the issue of “reverse” discrimination.

First, I must confess that I deplore the term “reverse” discrimination.    Under both federal and state laws, if an employer is motivated by an employee’s race in an adverse employment action, such as a demotion, failure to promote, or termination, it is unlawful.  Period.  As a result of changing attitudes, changing demographics and the enforcement of anti-discrimination laws, we are seeing a greater representation of women and minorities in management.  As a result, there is an increasing number of cases in which the discriminator, harasser or bad actor is either female or a member of a “minority” group.

Employers also sometimes engage in discrimination when attempting to remedy past discriminatory hiring practices.   This occurs when an employer attempts to implement an affirmative action plan, and refuses to hire or promote the best qualified applicant solely because it seeks to fill a position with a minority candidate.

A few years ago, the U.S. Supreme Court decided Ricci v. DeStefano, a case in which competing interests came to a head.  The Ricci case involved the City of New Haven (Connecticut) fire department, and several candidates who were denied promotions.   In a very simplified summary, the city attempted to address past discrimination towards minorities by implementing a racially-neutral testing system for promotions.    The problem arose, however, when the new testing still resulted in an overwhelming number of white employees as top scorers.  Concerned that the test results would have a discriminatory impact on black and Hispanic applicants, the city decertified the test results.

Eighteen fire fighters (17 white and 1 Hispanic) who passed the test, but were denied promotions, sued.   The Supreme Court ruled in favor of the fire fighters, holding that, among other things, the tests were job related and consistent with business necessity, and the city’s fear of discrimination claims by one group of employees, cannot, without greater evidence, justify discrimination against another group.  This opinion, however, was met with distain and resistance by some scholars, activists and employment attorneys who do not believe that a historically advantaged group can be the victim of discrimination.

Was race a factor in the city’s decision not to promote these firefighters with high test scores?   As Chief Justice Roberts questioned during oral arguments, would the City of New Haven have thrown out the test scores if black applicants had a disproportionate amount of high test scores?   If the answer to the second question is no, then the answer to the first question is probably yes.

It is not an easy topic to discuss, as it involves a clash of our own self image as Americans.   We know that minority groups have historically been discriminated against, but we are also reluctant to combat past injustices with new discrimination.  In the end, anti-discrimination laws can only be effective if the public feels that its equal protections apply to all.

“Injustice anywhere is a threat to justice everywhere.”
― Martin Luther King, Jr.

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John Wenke is an Employment Law Attorney practicing in the area of employment discrimination, wrongful termination, retaliation, and sexual harassment. Mr. Wenke represents employees in Texas and New Mexico, including but not limited to El Paso,  Las Cruces, Alamogordo, Pecos, Marfa, Alpine, Presidio, and Del Rio.