Reverse Discrimination

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Reverse discrimination refers to discrimination against members of an historically majority, or “advantaged,” group. The term grew in popular use in the U.S. in the late 20th century, as legislation required special emphasis be put on offering advantages to minority populations, such as women, blacks and Hispanics, and the disabled. This legislative policy is referred to as “affirmative action.” To explore this concept, consider the following reverse discrimination definition.

Definition of Reverse Discrimination

Noun

  1. The unfair treatment of members of majority groups, often resulting from preferential policies enacted by the legislature, intended to remedy prior discrimination against members of minority groups.

Origin

1964    Employment law and personal rights law

What Is Reverse Discrimination

Discrimination is defined as the poor or unfair treatment of a person based on his or her race, ethnicity, gender, religion, or disability. Because employment and social practices have historically favored those who participate in the activities in the largest number, the members of certain minority groups have been the butt of discrimination.

Discrimination has historically been found in employment, education, and other areas. For example, many colleges had a greatly higher population of White students vs Black students, and many employers employed women only in certain positions.

Reverse discrimination on the other hand, is discrimination against persons of a majority group, such as whites, males, or people of a certain age. While discrimination in any manner, whether reverse or otherwise, is illegal in the United States, the issue of reverse discrimination can be complex, as the laws governing affirmative action are in flux.

Policies or Actions That May be Considered Reverse Discrimination

Affirmative action began as an executive order signed by President Kennedy in 1961, which required government contractors to:

“… take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin.”

While this order applied only to government agencies and companies who did contracted work for the government, the states soon took up the banner of affirmative action, and the policy spread throughout the corporate world. Over the decades since the signing of Executive Order 10925, the number of minority individuals chosen for employment or advancement, accepted in schools of higher education or distinctive education, and granted benefits such as scholarships offered only to minority groups, has grown to the point that members of majority groups began crying reverse discrimination.

As public policy in this area is softening, people on both sides of the issue are giving greater consideration to its ramifications, and whether affirmative action is still necessary. Still, there are certain acts that may be considered discriminatory. Some of these acts may even be a result of a company’s policy on hiring and promoting, or a school’s policy on admittance.

  • Hiring or promoting people of a minority group despite the superior experience and qualifications of majority candidates
  • Refusing to hire people under a certain age in order to give preference to older people, or people nearing retirement age
  • Refusing an applicant for school based on the fact that he falls into the majority group
  • Granting extra points to minorities, or penalizing majority students on their standardized or admittance test scores in an attempt to racially balance the student body

Example of Reverse Discrimination in Employment

ABC Company requires their employees to take an aptitude test as part of the process of promoting them. Both John and Marsha take the test, John scoring just two points higher than Marsha. John is surprised when Marsha is offered the promotion, and learns that management had decided they needed to hire and promote more women and other minorities in order to be seen as an “equal opportunity employer.” In this example of reverse discrimination, John, who is in a majority group of white males, was passed over simply because he is a man.

Civil Rights Act of 1964

The judicial system in the U.S. struggles to bear the burden of hearing discrimination cases. Title VII of the Civil Rights Act of 1964 makes it illegal for employers 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.” It also states that employers may not create programs or enact policies that have adverse effects on members of any protected group of people.

Courts have interpreted the text of the Act differently at times, and like other types of discrimination, reverse discrimination may be difficult to prove in court.

Reverse Discrimination in the Workplace

Reverse discrimination in the workplace occurs when members of a majority group are prevented from gaining a particular job, promotion, or type of employment because the employer has an intent to hire minorities based primarily on their minority status. Affirmative action came of a belief by some that certain minority groups should be compensated for past discrimination. Opponents of affirmative action have expressed concern that the policy has gone too far, and gone on too long.

Elements of Reverse Discrimination

In order for a person to prove that reverse discrimination occurred, he must meet the required elements of reverse discrimination. This is not always easy, as the plaintiff has to provide the court with proof that the discrimination was based on his inclusion in a protected group of people, such as his sex, race, age, or religion. Elements required to prove reverse discrimination occurred include:

Plaintiff’s Evidence:

  • The plaintiff belongs to a protected class of people
  • Employees of similar qualifications were treated more favorably than the plaintiff
  • The plaintiff performed his job satisfactorily
  • Plaintiff was subjected to an adverse employment action based on discrimination
  • Evidence that supports the assertion that the employer discriminates against protected classes of people

If the employer provides information to the court showing that the employment decision was based on non-discriminatory reasons, the plaintiff must provide further proof to the court.

  • The employer’s explanation is false, or not factual
  • The explanation, which may be truthful, was not the real reason for the employment decision
  • The employer’s stated reason was not sufficient to justify the adverse decision

What to Do if Reverse Discrimination Occurs

If a person suspects he is being discriminated against at work, he should begin taking notes and accumulating evidence. It is important to write down every statement that seems unjust or offensive, to save any emails, text messages, or voicemails that contain offensive language or statements. It is a good idea to print these for future reference. The individual should also talk to co-workers to determine if they have encountered similar discrimination.

The next step is to take the problem to management. The individual should file a complaint with the manager and refer to the complaint policy to take the proper steps. If the issue remains unsolved, the individual should file a complaint with the appropriate government agency, such as the EEOC, or the state’s fair employment agency.

If the issue remains unsettled, he may file a civil lawsuit against the employer or other entity committing the discrimination or reverse discrimination. It should be noted however, the before filing a lawsuit, it is required that the victim contact the EEOC or the state agency.

Complaints of Reverse Discrimination

In the United States, discrimination complaints may be filed with the Equal Employment Opportunity Commission (“EEOC”). This government agency administers and enforces laws against workplace discrimination in any form. Such complaints may be made by employees or employers, applicants, or other person adversely affected by workplace discrimination. Reverse discrimination is still discrimination, and is covered by the EEOC.

The Civil Rights Act of 1964 directly addresses unlawful practices in the workplace. SEC. 2000e-2. [Section 703], defines unlawful employment practices as:

“(a) Employer practices

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.

(b) Employment agency practices

It shall be an unlawful employment practice for an employment agency to fail or refuse to refer for employment, or otherwise to discriminate against, any individual because of his race, color, religion, sex, or national origin, or to classify or refer for employment any individual on the basis of his race, color, religion, sex, or national origin.

(c) Labor organization practices

It shall be an unlawful employment practice for a labor organization-

(1) to exclude or to expel from its membership, or otherwise to discriminate against, any individual because of his race, color, religion, sex, or national origin;

(2) to limit, segregate, or classify its membership or applicants for membership, or to classify or fail or refuse to refer for employment any individual, in any way which would deprive or tend to deprive any individual of employment opportunities, or would limit such employment opportunities or otherwise adversely affect his status as an employee or as an applicant for employment, because of such individual’s race, color, religion, sex, or national origin; or

(3) to cause or attempt to cause an employer to discriminate against an individual in violation of this section.”

The entire text of the Civil Rights Act of 1964 can be found on the U.S. Equal Employment Opportunity Commission website.

Defense to Reverse Discrimination

The most common defense to reverse discrimination is the claim that the discrimination was necessary in order to fix previous discrimination against a minority group. In order for the employer to be successful with this defense to reverse discrimination, it must submit strong evidence that it would be held liable for previous discrimination. An employer unable to defend against a claim of discrimination, or reverse discrimination, may be subject to hefty fines and other civil penalties.

City Found Guilty of Reverse Discrimination

In the early 2000s, the city of New Haven, Connecticut hired a consultant group to specially design exams for the purpose of hiring and promoting firefighters and police officers. At the time, the city needed to fill vacancies in the fire department for the positions of lieutenant and captain. The consultant group took great care to understand the needs of each position, and to create exams that were racially neutral, but tested for knowledge, experience, and skill levels needed.

The test was taken by 118 candidates, 68 of whom were White, 27 of whom were Black, and 23 of which were Hispanic. When the test results were in, there were 17 White firefighters and 2 Hispanic firefighters who were eligible for promotion to the available positions. The results were taken before the New Haven Civil Service Board, which was responsible for certifying the test results prior to the actual promotion process.

The Board decided, however, that the results unfavorably portrayed the Black firefighters, none of whom were found eligible by the current test. The Board was fearful that this placed the city at risk for a “disparate impact lawsuit,” which is a lawsuit based on an employer’s neutral employment practices, which have a lop-sided adverse effect against members of a minority or disadvantaged group of people. They did not certify the test.

New Haven did not avoid the dreaded disparate impact lawsuit, as the White and Hispanic firefighters who had scored the highest on the test, yet were passed over for promotion, sued for reverse discrimination. The trial court determined that the City had not intentionally committed discrimination, and ruled in favor of the City. The case eventually made its way to the U.S. Supreme Court, where the test itself, as well as the City’s decision not to certify the test results were scrutinized.

The Supreme Court ruled that the test had been developed and administered in such a manner as to ensure no discrimination was present in its results. The City, in choosing to discard the test results, in favor of hiring less-qualified minority firefighters, violated the disparate impact section of Title VII, committing reverse discrimination based on race. The trial court’s ruling was overturned.

Related Legal Terms and Issues

  • Civil Lawsuit – A lawsuit brought about in court when one person claims to have suffered a loss due to the actions of another person.
  • Discrimination – The practice of unfairly treating different categories of people, especially on the grounds of ethnicity, national origin, gender, race, religion, and sexual orientation.
  • Disparate Impact – A different and more inhibiting effect on persons of a minority group than on those of a majority group. Disparate impact also applies to reverse discrimination.
  • Plaintiff — A person who brings a legal action against another person or entity, such as in a civil lawsuit, or criminal proceedings.
  • Protected Class – A group of people protected from discrimination on the basis of sex, race, religion, color, national origin, age, and disability.
  • Victim – A person who is injured, killed, or otherwise harmed as a result of a criminal act, accident, or other event.