Flipping the Script: The Rise of Reverse Discrimination Claims

Key Highlights

• The EEOC's renewed emphasis on "colorblind" enforcement has contributed to a rise in reverse discrimination claims covering hiring and promotion decisions, workplace programs, and broader diversity, equity and inclusion (DEI) initiatives.
• Employers should review established workplace programs and policies for compliance with Title VII’s prohibition on discrimination.

For decades, workplace discrimination claims have most commonly involved allegations that employers disadvantaged individuals from historically underrepresented groups. Recently, however, the EEOC has been flipping the script.

Employers now face so-called “reverse discrimination”—claims brought by employees who insist they were discriminated against based on a protected characteristic, despite belonging to a majority group.

The EEOC’s Position

The EEOC has signaled that reverse discrimination claims will be an enforcement priority. In recent guidance, the agency emphasized that Title VII's protections apply equally to all employees, regardless of race, sex or other protected characteristics, and that workplace policies intended to advance diversity, equity and inclusion are subject to the same anti-discrimination principles as any other employment practice.

Adopting a “colorblind” approach to enforcement, the EEOC has further warned that employers may face liability where protected characteristics influence hiring, promotion, training, mentoring, networking or other employment opportunities, even when those actions are undertaken in pursuit of diversity-related objectives.

This enforcement approach aligns with other recent developments at the federal level. For example, as discussed in our recent article, the Department of Justice recently concluded that the EEOC's disparate-impact guidance is unconstitutional because it may encourage employers to consider race in employment decisions.

Employment Decisions Under Increased Scrutiny

At the forefront of the new reverse discrimination trend are claims about hiring, firing and advancement decisions.

For example, in EEOC v. The New York Times Company, the EEOC alleged that a white man was denied a promotion because of his race and sex, despite having stronger qualifications than the selected candidate. The complaint pointed to the New York Times' "Call to Action" initiative, which sought to increase racial and gender diversity in leadership positions, and alleged that those objectives influenced promotion decisions. The EEOC cited the initiative, the relative qualifications of the candidates, and aspects of the promotion process as evidence that race and sex influenced the decision. The case remains in its early stages.

Implications for Employers

Employers should pay close attention to this developing trend. While many organizations remain committed to fostering diverse and inclusive workplaces, these developments underscore the importance of ensuring that employment decisions, workplace programs and related policies are designed and implemented in a manner consistent with anti-discrimination laws.

To prepare for this trend, employers may:

• Document hiring, firing and promotion decisions with clear, business-related justifications;
• Review leadership, mentoring, networking and development programs for whether eligibility criteria are legally defensible;
• Train managers and decision-makers on objective, job-related selection criteria.

Although the law in this area continues to evolve, recent enforcement activity and litigation suggest that reverse discrimination claims are likely to remain a significant compliance and litigation risk for employers. As courts continue to address these claims, we will provide updates on developments and their potential impact on employers.

For further questions about this legal trend, please contact your Polsinelli attorney.