Proving reverse bias: Tough, but not impossible

Two recent court decisions shed some light.

Two decisions in reverse discrimination cases came down this week from the U.S. Court of Appeals for the Seventh Circuit. In one case, a three-judge panel found in favor of the employer (in other words, no reverse discrimination). In the other case, a different panel found in favor of the employee (meaning that she had enough evidence to get a jury trial on her claims).

Both decisions provide some helpful lessons for employers, especially in this age where the emphasis on diversity, equity, and inclusion can tempt some employers to discriminate against applicants and employees who are "not diverse."

Depending on the jurisdiction, the plaintiff in a reverse discrimination case may initially have to present "background circumstances" that tend to show that the defendant is "that unusual employer who discriminates against the majority." As the Seventh Circuit put it in the Runkel decision discussed below, that plaintiff must initially have evidence that the employer "had reason or inclination to discriminate invidiously" against the majority group member or that "there were 'fishy' circumstances." This is more than what is  required of a member of a minority group suing for race discrimination, or a woman suing for sex discrimination.

Employer wins: Groves v. South Bend Community School Corporation

William Groves, a white male, was Athletic Director at a high school in the Corporation (really, a school district). He applied for a newly-created position as Director of Athletics for the entire school district but was beaten out by a Black male. The person who decided to hire the Black male was also Black.

Mr. Groves contended that he was so much more qualified than his Black counterpart that reverse race discrimination was the only possible reason for the selection. Among other things, Mr. Grove had been an Athletic Director since 2007, and his counterpart had never been an Athletic Director although he had been a high school coach for a long time.

Two years later, the district-wide Director of Athletics position was eliminated, and the school district instead created a new position of Dean of Students/Athletics at each of the four high schools in the district. Mr. Groves applied for one of those positions but was not selected, while his Black counterpart was. 

According to the school district, Mr. Groves blew it in both of his interviews. He was "off-putting" when he "seemed to boast of firing 24 coaches" during the time that he was Athletic Director at the high school. There were also unspecified issues of noncompliance with regulations of the Indiana High School Athletic Association during Mr. Groves' tenure, and one of the top priorities of the school district was to repair its damaged relationship with the IHSAA. Although these perceptions were subjective on the part of the decision maker, the court found that they were legitimate considerations.

For the same reasons, Mr. Groves was not selected for the second position, plus by that time his Black counterpart had had two years of experience as a district-wide Director of Athletics.

Although the counterpart had two felony convictions in the 1990s, the undisputed evidence was that the school district was unaware of that until after both hiring decisions had been made. (Per district policy, background checks were performed only on external -- not internal -- job applicants.)

Based on the above, the Seventh Circuit panel found that the district court had properly granted summary judgment to the school district.

Case goes to jury: Runkel v. City of Springfield

In this case, the plaintiff's reverse discrimination claim will go to trial.

Diane Runkel (white) was an assistant purchasing manager for the City. When her boss left, she applied for his position and seems to have been a logical choice. But instead of promoting Ms. Runkel, the Mayor first offered the job to a Black man (whose qualifications are not discussed in the court's decision) and then, when he turned it down, promoted a Black employee who reported to Ms. Runkel. In a media interview, the Mayor -- who was up for reelection -- cited the promotion of the Black employee "as an example of how his administration was 'moving toward reflecting the city's demographics.'"

Most damning of all for the City, there was evidence that Ms. Runkel's employee did not even submit a resume for the position until after the Mayor had offered her the position. "Along with the other evidence," the panel said, "this detail might support a reasonable jury's inference that the mayor was more interested in [the employee]'s race than in her (substantial) qualifications." (Brackets added, parenthetical in original.)

Ms. Runkel also had evidence that she was qualified for the position and that she had already been asked to be the acting Purchasing Manager if the search for a Purchasing Manager took too long. And she had evidence that her duties and the duties of the Purchasing Manager had "significant overlap." Also, although the City claimed that the employee who was selected had more education, helpful experience that Ms. Runkel did not have, and was more "professional" than Ms. Runkel, the Mayor admitted in his deposition that he never even considered Ms. Runkel for the position (and therefore never compared her qualifications with those of her employee).

In short, Ms. Runkel had enough evidence to get to a jury on her claim that the Mayor -- for political reasons -- hand-picked a Black employee for the Purchasing Manager position because of her race and not because of her superior qualifications.

Lessons for employers

Title VII prohibits race discrimination, and that includes discrimination against white people. It also prohibits sex discrimination, including discrimination against men. Although members of the "majority groups" may have a tougher time proving discrimination than their counterparts, proving reverse discrimination is not impossible. Employers should ensure that all of their selection processes -- whether for hiring, promotion, or restructuring -- are fair and non-discriminatory, with the help of their employment counsel as needed. They should also be sure that they can explain their decisions, no matter who is selected.

Image Credit: From Wikimedia, Creative Commons 2.0, Fabrice de Nola "Negative Photography."

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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