Sharpen Your FOCUS: Perspectives on Workplace Diversity 

“Reverse” discrimination cases on the rise

The headlines have been replete with cases where employees and applicants accuse employers of prioritizing diversity over merit and using protected characteristics in making employment decisions.

For example, Northwestern University was sued by Faculty, Alumni, and Students Opposed to Racial Preferences, an organization formed to “restor[e] meritocracy in academia and [to fight] race and sex preferences that subordinate academic merit to so-called diversity considerations.” The organization claims that Northwestern University’s hiring practices discriminate against white male candidates, allegedly in favor of candidates who meet diversity goals. It asserts that the University “refuses to even consider hiring white male faculty candidates with stellar credentials, while it eagerly hires candidates with mediocre and undistinguished records who check the proper diversity boxes.”

We also recently reported on another “reverse” discrimination case where former employees alleged that Gannett made discriminatory employment decisions in furtherance of its Diversity, Equity, and Inclusion goals. The plaintiffs claimed that the company’s diversity efforts discouraged the hiring of “straight white males” and incentivized leadership to prioritize diversity in hiring and promotions. A district court dismissed the Complaint, finding that Gannett’s general DEI policies did not, on their own, demonstrate discrimination. The plaintiffs have filed an Amended Complaint, which faces yet another motion to dismiss by Gannett.

The initial Order in the Gannett case suggests that challengers cannot rely solely on the existence of DEI policies and must allege specific evidence of discriminatory intent or impact.

The Supreme Court Ames case

In the Ames case, the Supreme Court will decide whether “reverse” discrimination plaintiffs have a more demanding burden of proof than plaintiffs who are members of minority groups. A number of courts have said that they do.

In these jurisdictions, a plaintiff in a “reverse” discrimination case must show – in addition to the proof requirements that apply to all discrimination cases – “background circumstances” indicating that the defendant is the unusual employer that discriminates against members of the majority group. This higher standard is applied in the U.S. Courts of Appeal for the Sixth, Seventh, Eighth, and Tenth Circuits.

Other circuit courts of appeal, such as the Third and Eleventh Circuits, have rejected this standard, noting that Title VII of the Civil Rights Act of 1964 provides no basis for requiring members of the majority group to prove more than minority group members to establish a claim for discrimination.

Mariam Ames alleges that the Ohio Department of Youth Services discriminated against her on the basis of sexual orientation when it denied her a promotion and later demoted her because she is heterosexual, while treating LGBTQ employees more favorably. Both the U.S. District Court for the Southern District of Ohio and the Sixth Circuit ruled against Ms. Ames, citing her failure to meet the higher standard of proof, and granted summary judgment to the employer.

The outcome of the Ames case is likely to provide valuable guidance on “reverse” discrimination claims and influence how DEI commitments are assessed under Title VII.

If you have questions about the impact of this issue on your employment practices, please don’t hesitate to contact an attorney from Constangy’s Diversity, Equity, and Inclusion Practice Group.