Title Vii Is Color Blind: the Law of Reverse Discrimination
| Publication year | 2006 |
| Pages | 20-29 |
75 J. Kan. Bar Assn. 6, 20-29 (2006). Title VII is Color Blind: The Law of Reverse Discrimination
75 J. Kan. Bar Assn. 6, 20-29 (2006)
I. Introduction
Corporate America has declared diversity to be a priority in today's global marketplace. In Grutter v. Bollinger, the U.S. Supreme Court stated, "American businesses have made clear that the skills needed in today's increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints."(fn1)
The diversification of America can be seen in the development of majority-minority states. The U.S. Census Bureau released a report indicating that minorities make up a majority of the population in four states - California (56 percent), Texas (50.2 percent), Hawaii (77 percent), and New Mexico (57 percent).(fn2) The minority population in the District of Columbia also exceeds 70 percent.(fn3) Other states, including New York, Georgia, Arizona, Maryland, and Mississippi, have minority populations exceeding 40 percent.(fn4) Therefore, in order to attract qualified minority employees, companies are promoting diversity as a competitive and recruiting advantage.(fn5)
The benefits of a diverse workplace are infinite and should never be discouraged, but employers must take care to avoid engaging in what is known as "reverse discrimination" or discrimination against members of majority or favored groups. The number of reverse discrimination claims has risen in recent years.(fn6) Title VII prohibits all discrimination on the basis of race, color, religion, sex, or national origin, including reverse discrimination.(fn7) Favoritism on the basis of a protected trait will result in potential liability under Title VII for reverse discrimination, unless the preference is accorded pursuant to a valid affirmative action plan.
Section II of this article will discuss the legal support for reverse discrimination claims under Title VII. Section III will address the legality of voluntary affirmative action plans. Section IV considers whether disparate impact reverse discrimination claims are cognizable under Title VII. Section V discusses the proof scheme applicable to Title VII reverse discrimination claims. Finally, section VI provides a glimpse of some employer practices that amount to unlawful reverse discrimination.
II. Reverse Discrimination is Prohibited by Title VII
Reverse discrimination is generally defined as discrimination against an individual on the basis of that individual's membership in a majority group, i.e., whites and males. Most reverse discrimination claims are brought under Title VII.(fn8) Title VII was primarily enacted to protect minorities from discrimination on the basis of race, but it is clear that Congress intended to eliminate all discrimination, including reverse discrimination, when it enacted Title VII.(fn9)
A. Legislative history and statutory support for reverse discrimination claims under Title VII
At the time the Civil Rights Act of 1964 was enacted, the country was still struggling mightily with race discrimination. While there was strong support for Title VII, it likely would not have been enacted if it had not been clear that Title VII prohibits all discrimination, including reverse discrimination. To assuage the concerns of some of the conservative members of Congress, other members emphasized Title VII's broad prohibitions against all discrimination. Manny Cellar, a Democratic member of the House of Representatives, declared:
The legislation before you seeks only to honor the constitutional guarantees of equality under the law for all. It bestows no preference on any one group; what it does is to place into balance the scales of justice so that the living force of our Constitution shall apply to all people, not only to those who by accident of birth were born with white skins ... Both parties joined hands.(fn10)
Joseph Clark and Clifford Case, members of the Senate, introduced a memorandum into the Congressional Record, which stated, "[i]t must be emphasized that discrimination is prohibited as to any individual." Sen. Hubert Humphrey proclaimed:
What the bill does ... is simply make it an illegal practice to use race as a factor in denying employment. It provides that men and women shall be employed on the basis of their qualifications, not as Catholic citizens, not as Protestant citizens, not as Jewish citizens, not as colored citizens, but as citizens of the United States.(fn11)
Clearly, Congress intended to prohibit reverse discrimination when it enacted Title VII.(fn12)
Congress' intent is further evidenced by the language used in Title VII, which reads in pertinent part:
It shall be an unlawful employment practice for an employer ... (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.(fn13) (Emphasis added.)
The statute repeatedly indicates that "any individual" is protected. If Congress had only meant to protect individuals who were members of a historically disadvantaged group, it could have used a phrase far narrower than "any individual" or it could have defined "individual" only to include minorities.(fn14) Nowhere in the statute does it say that individuals are only protected if they are a minority.(fn15)
Courts have repeatedly held that Title VII prohibits reverse discrimination.(fn16)
B. Reverse discrimination as defined by the U.S. Supreme Court
In Griggs v. Duke Power Co., the U.S. Supreme Court first suggested in dicta that reverse discrimination is actionable under Title VII.(fn17) The Court was not considering a reverse discrimination claim, but it nevertheless stated that Title VII:
[D]oes not command that any person be hired simply because he was formerly the subject of discrimination, or because he is a member of a minority group. Discriminatory preferences for any group, minority or majority, is precisely and only what Congress has proscribed.(fn18)
Seven years later, in McDonald v. Santa Fe Trail Transportation Co., the Court finally had an opportunity to decide its first Title VII reverse discrimination case.(fn19) In that case, three employees were accused of stealing customer property.(fn20) Two of the employees were white and the other was black.(fn21) The white employees were discharged, while the black employee was retained.(fn22) The white employees sued the employer under Title VII and § 1981, but the trial court dismissed the employees' complaint.(fn23) The Court reversed the trial court's decision and held for the first time that "Title VII prohibits racial discrimination against the white petitioners in this case upon the same standards as would be applicable were they Negroes and [the black employee] white."(fn24) (Emphasis added.) The Court's holding in McDonald was plain and unmistakable: race could not be considered in employment decisions, even when the employer's intentions were commendable.
The only exception to McDonald is that race may be considered as a "plus factor" when used in the context of a valid affirmative action plan.(fn25) The
McDonald case did not involve an affirmative action plan. The Court first indicated that affirmative action was lawful in Bakke v. Regents of the University of California.(fn26) In Bakke, a deeply divided Court(fn27) struck down a medical school admissions program that reserved 16 slots for minority applicants, but the Court held that race could be considered as one factor among many in the admissions process.(fn28) While Bakke was not a Title VII case and did not involve affirmative action by an employer, it is nevertheless instructive on how the Court has historically evaluated affirmative action plans.
The Court considered a voluntary affirmative action program(fn29) by an employer for the first time in United Steelworkers of America v. Weber.(fn30) In that case, an employer implemented an in-plant craft training program in which 50 percent of the openings in the program were reserved for minorities until the percentage of minority workers was equivalent to the percentage of minorities in the local labor market.(fn31) A group of white employees sued the employer for reverse discrimination contending that the program violated Title VII, but the Court rejected their claims.(fn32) The Court noted that Title VII was primarily enacted "to open employment opportunities for [blacks] in occupations ... traditionally closed to them."(fn33) It was troubled by the prospect of striking down an employer's voluntary effort to further the primary purpose behind Title VII:
It would be ironic indeed if a law triggered by a [n]ation's concern over centuries of racial injustice and intended to improve the lot of those who have 'been excluded from the American dream for so long' constituted the first legislative prohibition of all voluntary, race-conscious efforts to abolish traditional patterns of racial segregation and hierarchy.(fn34)
The Court, therefore, held that Title VII "does not condemn all private voluntary race-conscious affirmative action plans."(fn35)
The Court reaffirmed Weber when it decided Johnson v. Transportation Agency, Santa Clara County, California.(fn36) The Court extended Weber to protect affirmative action in favor of women.(fn37) In Johnson, a woman was...
To continue reading
Request your trial