"Reverse discrimination" refers to employment discrimination of classes that historically have been privileged, e.g., Caucasians and men. Affirmative Action in the selection of students for university entry is the most well-known example of reverse discrimination. Title VII prohibits discriminatory practices in the workplace on several bases (e.g., race, gender, and age) and exists to protect the rights of all individuals, regardless of their class of identity.
An employment decision that is motivated by race, for example, does not automatically amount to a constitutional or statutory violation. The plaintiff has the initial burden of establishing the employer's reverse discrimination was based on an actual discriminatory basis (e.g., race, sex.) Either of the following must be provided by the plaintiff:
If the employer provides a non-discriminatory reason for its employment decision, the plaintiff must then show that the non-discriminatory explanation is dishonest, by showing:
The most common defense to reverse discrimination is to claim that the reverse discrimination is necessary to fix previous or unintentional discrimination against non-privileged groups. However, in order to assert this defense, the employer must have a “strong basis” in evidence that it would be liable for previous or unintentional discrimination.
Affirmative action cases are the public highlight of this discussion. Proponents of affirmative action argue that it is necessary to prefer “minorities” over privileged groups because “minorities” have been historically discriminated against and because the current power structure favors privileged groups over “minorities.” Although this debate is most prominent in university admissions, job entrance and promotional exams are subject to the same criticism.
Unlike university admissions though, employers have to show strong evidence that the previous discrimination actually occurred at their company or that the unintentional discrimination is very likely to occur.
Pursing a reverse discrimination claim against an employer is complicated. An employment lawyer will assess your claim and help you with filing your claim. It is also a good idea to see a lawyer before signing a waiver or other severance package. If you are an employer being sued for reverse discrimination, you should speak to a lawyer immediately.
Last Modified: 04-11-2018 12:10 AM PDTLaw Library Disclaimer
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