Diversity Initiatives and the Backlash of Reverse Discrimination Claims.

• Author: Prats, Jacqueline M.

By now, most Americans have probably heard of the Black Lives Matter and Me Too movements. Although the Black Lives Matter movement had been active for a number of years, it gained international attention in the summer of 2020 when protests broke out across the nation in response to the killing of George Floyd by a Minneapolis police officer. (1) Among the issues highlighted during the months of protests that followed were the inequalities affecting Black people and other people of color in the workplace. (2) Three years before that, in 2017, the Me Too movement (itself happening on the heels of the 2017 Women's March (3)) became a global phenomenon as women flooded social media with stories tagged #MeToo describing their experiences of sexual assault or harassment; this flood of stories served to focus the nation's attention on inequalities affecting women in the workplace. (4)

Many employers responded to the heightened attention surrounding these movements and the resulting cultural shifts by implementing diversity programs or enhancing the programs they already had in place. For example, in the months following the 2020 protests, the rate of hiring for new diversity officers nearly tripled among companies in the S&P 500 index, (5) and a number of household-name corporations, including Microsoft, McDonalds, Boeing, IBM, Facebook, and Google have made public pledges to increase the diversity of their workplaces. (6)

Predictably, there has been a backlash to the growing attention to workplace inequality and the resulting efforts by employers to increase diversity in the workplace. Anecdotally, employment attorneys have reported increases in "reverse discrimination" claims (7)--that is, discrimination claims asserted by employees who do not belong to traditionally marginalized groups--and several large corporations, including Google, YouTube, and Starbucks, have seen reverse discrimination claims make national news in recent years. (8) In late 2020, this backlash was reflected in the Trump administration's issuance of Executive Order 13950, which prohibited federal agencies and contractors from implementing diversity training espousing an enumerated list of "divisive concepts," among other things. (9) Although President Biden issued executive orders revoking the previous administration's executive order and affirming his administration's commitment to diversity, (10) it is not difficult to imagine that some employees could repurpose the arguments presented in Executive Order 13950 to add to the growing tide of reverse discrimination claims against private employers who implement voluntary (11) diversity programs, a tide that was on the rise even before Executive Order 13950. (12) This push-and-pull puts employers in the unenviable position of trying to effectively diversify their workforces, while trying to dodge reverse discrimination claims from unhappy members of traditionally non-marginalized groups.

What Is a Reverse Discrimination Claim?

Title VII of the Civil Rights Act of 1964 (13) protects employees from discrimination on the basis of their race, color, religion, sex, or national origin. (14) Although Title VII was enacted with the goal of protecting members of minority (15) groups, it is well-settled that Title VII protects those on both sides of the "minority/majority" divide; for example, white or male employees enjoy essentially the same protections as black or female employees. (16) In rare circumstances, a plaintiff is in a position to present direct evidence of discrimination, where such evidence (if believed) "proves the existence of a fact without inference or presumption"; in these cases the burden-shifting framework becomes unnecessary and the plaintiff has fewer obstacles to prevailing on a discrimination claim. (17)

Discrimination cases under Title VII, which are often presented using circumstantial evidence, are commonly analyzed using the burden-shifting framework set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). A Title VII plaintiff complaining of discrimination first has the burden to establish a prima facie case of discrimination by showing that the plaintiff 1) belongs to a protected class; 2) is qualified for the position in question (18); 3) was subjected to an adverse employment action (19); and 4) was treated less favorably than an individual outside the class. If the plaintiff establishes the prima facie case, the burden shifts to the defendant to show that it had a legitimate, nondiscriminatory reason for taking the adverse employment action. If the defendant successfully does so, the burden shifts back to the plaintiff to show that the defendant's proffered reason(s) is pretextual. (20)

"Reverse discrimination" claims are so-called in recognition of the fact that, typically, a Title VII plaintiff is a member of a minority group complaining of mistreatment on the basis of that membership, often by a member of a majority group. In reverse discrimination claims, that dynamic is reversed. In some jurisdictions, courts have altered the first prong of a traditional prima facie discrimination case, requiring reverse discrimination plaintiffs to show "background circumstances [that] support the suspicion that the defendant is the unusual employer who discriminates against the majority." (21) However, in the 11th Circuit, the "background circumstances" requirement has been rejected, and reverse discrimination claims are treated the same way as "normal" discrimination claims. (22)

How Can an Employer Be Vulnerable to Reverse Discrimination Claims?

Diversity programs necessarily involve Title VII-protected characteristics of employees and job applicants--that is, they permit or require an employer to consider an individual's race, gender, or other protected characteristic as part of a hiring, firing, promotion, or other employment decision for the purposes of increasing the numbers of minority, or other historically disadvantaged groups, in a workforce. (23) As a result, employers implementing certain types of diversity programs, particularly affirmative action plans, must tread carefully or risk running afoul of Title VII's prohibitions against making employment decisions based on such protected characteristics. (24) Critically, a voluntary affirmative action plan must be backward-looking to be valid under Title VII. In other words, it must be designed to remedy historical discrimination:

It is only because Title VII was written to eradicate not only discrimination per se but the consequences of prior discrimination as well, that [protected-class] preferences in the form of affirmative action can coexist with the [a]ct's antidiscrimination mandate. Thus, based on our analysis of Title VII's two goals, we are convinced that unless an affirmative action plan has a remedial purpose, it cannot be said to mirror the purposes of the statute. (25)

Two U.S. Supreme Court cases, United Steelworkers of America v. Weber, 443 U.S. 193, 201 (1979), and Johnson v. Transportation Agency, 480 U.S. 616, 638 (1987), articulated the standard for determining whether a voluntary affirmative action plan is valid under Title VII. The plan must 1) be designed to remedy a "manifest imbalance" in a "traditionally segregated job category"; and 2) not "unnecessarily trammel" the rights of nonminority employees, nor serve as an "absolute bar" to their advancement. (26)

Regarding the first prong, determining whether a "manifest imbalance" exists generally involves comparing the percentage of minority employees within a...