Most employment discrimination cases revolve around the minority. A typical employment lawsuit will have a minority member of a class alleging discrimination. The atypical employment lawsuit involves reverse discrimination where a majority class member is alleging discrimination.
Reverse discrimination is defined as:
Prejudice or bias executed against a person or class for purpose of correcting a pattern of discrimination against another person or class. A type of discrimination in which majority groups are purportedly discriminated against in favor of minority groups, usually via affirmative action programs.
Blacks Law Dictionary, 1319 (6th Ed. 1190). In other words, reverse discrimination (in a broad sense) refers to intentional discrimination against whites or males in areas of employment, education, etc. Another way to look at reverse discrimination (in a narrow sense) is that it refers to the negative impact whites or males experience because of affirmative action policies.
The key issue is what standard do Courts use to prove reverse discrimination? A majority of Courts have followed the McDonnell Douglas standard. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The first prong of the McDonnell Douglas standard requires the Plaintiff to prove: (i) that he/she belongs to a racial minority; (ii) that he/she applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his/her qualifications, he/she was rejected; and (iv) that, after his/her rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications. Id. After the Plaintiff establishes their prima facie case, the burden shifts to the Employer to articulate “some legitimate, nondiscriminatory reason for the employee’s rejection.” Id. If the Employer is able to do so, then the Plaintiff must be given an opportunity to show that the stated reason for the rejection was a pretext for intentional discrimination. Id.
The struggle between the Courts has been the first prong of this prima facie framework.
The District of Columbia, Sixth, Eight and Tenth Circuits have decided to modify the first prong of the prima facie framework in reverse discrimination lawsuits to require the Plaintiff to show “background circumstances” to prove that the Employer discriminates against the majority. This requirement has replaced the first element of the Plaintiff’s prima facie case. The Plaintiff no longer has to prove he/she belongs to a minority but that the Employer has a history of discriminating against the majority.
Other Courts, including the Third, Fourth, Fifth and Eleventh Circuits have criticized high burdens in reverse discrimination cases. These Courts have rejected having the Plaintiff prove they are members of protected class or the background circumstances of their Employer. These Courts simply require that Plaintiff state class membership to fulfill the first element of the prima facie case.
The Third Circuit has rejected the background circumstance requirement altogether in reverse discrimination cases. The Third Circuit requires a Plaintiff to present “sufficient evidence to allow a reasonable fact finder to conclude (given the totality of the circumstances) that the defendant treated [the] plaintiff ‘less favorably than others because of [his] race, color, religion, sex or national origin’.” Iadimarco v. Runyon, 190 F.3d 151, 157 (3d Cir. 1999).
With all this debate the question becomes: how are reverse discrimination cases panning out in Court?
In Kepple v. GPU, Inc., 2 F. Supp. 2d 730, 749-750 (W.D. Pa. 1998), a Plaintiff alleged reverse gender discrimination when his position was eliminated as a result of reorganization. Plaintiff alleged that his Employer ranked him lower in the employment draft in order to “protect” a female employee. As a result of this lower ranking, his job was eliminated in the reorganization. All of the positions the Plaintiff applied for were given to women. In one interview, the Plaintiff was told that he was given an interview “just for show, and that the position had to be filled by a female.” Id. Plaintiff was also told “one of the qualifications for the job was that you had to sit to piss.” Id. The Western District determined that these statements were evidence enough of reverse discrimination.
