IS “REVERSE DISCRIMINATION” LEGAL IN THE
WORKPLACE TODAY?
Antidiscrimination laws, by definition, attempt to achieve
social equality. By enforcing the Equal Protection Clauses
of the 5th and 14th Amendments of the United States
Constitution (and similar clauses embedded in the various
state constitutions), and by passing and enforcing laws
like Title VII of the 1964 Civil Rights Act (Title VII) and
the Genetic Information Nondiscrimination Act (GINA),
since the early 1960’s our government has aggressively
sought to stamp out social practices that create inequality.
For example, Title VII prohibits discrimination on the
basis of race, color, religion, sex, or national origin in
hiring or discharge, or with respect to "compensation,
terms, conditions, or privileges of employment," and also
makes it illegal to "limit, segregate, or classify"
employees in a way that "adversely affect[s]" their
employment status because of race, color, religion, sex or
national origin.
But fashioning antidiscrimination policy is far from easy.
There are never-ending disagreements over the best way
to get the job done. One of the biggest reoccurring
disputes concerns the notion of “reverse discrimination,”
particularly in the work place.
The first Supreme Court decision to tackle this issue was
McDonald v. Santa Fe Trail Transportation Co., 427 U.S.
273 (1976). In McDonald, our Supreme Court said Title
VII protects "white men and white women and all
Americans.” Thus, for the first time our Country’s
highest Court recognized the idea of impermissible
"reverse discrimination."
But less than three years later, the same Court handed
down what many considered to be a conflicting decision
in United Steelworkers v. Weber, 443 U.S. 193 (1979). In
United Steelworkers, the Supreme Court found a union
contract that openly discriminated against whites by
reserving fifty percent of the openings in a training
program for black applicants until the percentage of black
workers in an industrial plant was roughly the same as the
percentage of blacks in the local labor force did not
violate the law. This is because the Court found, among
other things, Title VII's seemingly absolute prohibition
against racial discrimination did not condemn all private,
voluntary, race-conscious affirmative action plans.
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The tension between “reverse discrimination,” the notion
the law should protect whites with little or no history of
past discrimination, and “affirmative action,” the notion
facial discrimination against whites is acceptable when
necessary to fix historical inequalities in the work place,
continued largely unchanged until 2009. Then two things
happened: (1) Congress passed the GINA (and certain
parallel important amendments to the Americans with
Disabilities Act), and (2) the Supreme Court handed down
its landmark decision in Ricci v. DeStefano, 557 U.S. 557
(2009).
GINA now makes it illegal for employers to discriminate
against job applicants, employees and former employees
on the basis of genetic information. GINA includes a
prohibition on the use of genetic information in all
employment decisions; strict limits on the ability of
employers and other covered entities to request or to
acquire genetic information; and requirements to maintain
the confidentiality of any genetic information acquired.
Genetic information includes information about an
individual's genetic makeup and the genetic tests of an
individual's family members, as well as information about
any disease, disorder or condition of an individual's
family members.
To date, no known court has found Congress intended
GINA, like Title VII, to preclude consideration of
“genetic-resultant” criteria, like race or ethnicity. Many
commentators believe, however, the potential for such an
expansive interpretation of the new law exists. Equally
important, no known authority holds there is an implied
exception to GINA, like the implied exception to Title
VII recognized in United Steelworkers, that would allow
employers to consider genetic-resultant criteria when
fashioning policies, or making decisions, to fix alleged
past inequalities in the work place. Hence, at present
GINA represents an untested weapon in the arsenal legal
counsel might bring to bear in attacking an openly antiwhite, or anti-majority, employment policy or decision.
The Supreme Court’s 2009 decision in Ricci further
changed reverse discrimination law by establishing new
limits on when reverse discrimination against whites will
be tolerated. In Ricci, a City spent over $100,000
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developing a skill and knowledge test to administer to its
firefighting personnel seeking departmental advancement.
After the test was administered, the City and firefighter’s
union determined that a far higher percentage of whites
passed the test as compared to non-whites. Thus, citing
the test’s “disparate discriminatory impact,” the City
refused to certify its results. As a result, all applicants
(white and non-white) who spent months studying and
who successfully passed the test were not promoted as
promised.
In a 5-4 decision, our Supreme Court reversed two lower
court decisions that previously concluded the City acted
properly. Instead, the Supreme Court ordered the trial, or
District Court, to immediately grant “summary judgment”
in favor of the successful test takers (meaning they
belatedly got their promotions). In so doing, the Court
rejected both the City’s argument that its actions were
justified by its “good faith” desire to comply with Title
VII’s mandate to eliminate work place inequality and the
successful test taker’s argument that an employer may
never intentionally discriminate to avoid so-called
“disparate impact liability.” Instead, the Court adopted a
middle ground approach by stating that before any
employer can "engage in intentional discrimination for
the asserted purpose of avoiding or remedying an
unintentional disparate impact, the employer must have a
strong basis in evidence to believe it will be subject to
disparate-impact liability if it fails to take the raceconscious, discriminatory action."
By adopting this new “strong basis in evidence” rule,
even where an employment policy meets the Equal
Employment Opportunity Commission’s (EEOC) “fourfifths rule” 1 – meaning the policy is presumptively
deemed discriminatory in terms of its impact – the policy
still cannot be successfully challenged under federal
antidiscrimination law, and the employer cannot be held
liable for so-called “disparate-impact discrimination,” if
the policy is consistent with a legitimate business
objective (e.g., the City’s goal of ensuring the best
qualified firefighting personnel are promoted), unless an
1
The EEOC’s “four-fifths rule” provides that an
employment policy is presumed to have a
discriminatory impact when it meets the following test:
“A selection rate for any race, sex, or ethnic group
which is less than four-fifths (4/5) (or eighty percent) of
the rate for the group with the highest rate will generally
be regarded by the Federal enforcement agencies as
evidence of adverse impact, while a greater than fourfifths rate will generally not be regarded by Federal
enforcement agencies as evidence of adverse impact.”
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equally valid, less-discriminatory alternative exists that
would achieve the same objective.
In short, although there has been much confusion over the
subject of reverse discrimination in the workplace, since
2009 those claiming to have been victimized by reverse
discrimination policies have had more legal ammunition
at their disposal to sue.
ABOUT THE FIRM
Enterprise Counsel Group, A Law Corporation
(ECG) is a business law firm specializing in trial,
appellate, transactional, family law, labor and
real estate matters. ECG’s foundational values
include professional excellence, an unwavering
dedic ation to it s clients’ interests, and the
development of honest, long-term working
relationships.
ECG’s foremost priority is the delivery of legal
servic es of the highest caliber in all client
engagements. In addition to providing energetic
and creative legal counseling in and out of the
courtroom, ECG finds and implements
innovative, practical and cost-effective solutions
in ac hieving its clients’ b usiness goals.
For more information about the topic covered in this Client
Advisory or for questions about the firm, please consult
your regular contacts at ECG or the author of this
publication, David Robinson,
(drobinson@enterprisecounsel.com.
Enterprise Counsel Group, ALC
3 Park Plaza, Suite 1400
Irvine, California 92614
Telephone: 949.833.8550
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