Employers Should Be Careful Not to Engage in "Reverse" Discrimination

Author: Beth P. Zoller, XpertHR Legal Editor

Recent federal settlements in reverse discrimination cases confirm that antidiscrimination laws prohibit illegal discrimination of any kind that is based on a victim's membership in a protected class (sex, race, religion, national origin, etc.), and not just discrimination against members of a minority group. Unlike the typical case of discrimination, reverse discrimination typically refers to discriminatory conduct or behavior directed against members of a historically dominant or majority group. The victim in a discrimination case does not have to be a member of a minority group as long as the discrimination is based on the victim's race, sex, national origin, or other protected characteristic. The following cases remind employers to take all discrimination complaints seriously regardless of who the victim is as antidiscrimination laws protect virtually all employees.

For example, in EEOC v. Hamilton Growers, Inc., US District Court for the Middle District of Georgia, No. 7:11-CV-134-HL, the employer, Hamilton Growers, Inc., d/b/a Southern Valley Fruit & Vegetable (Southern Valley), agreed to pay $500,000 to settle a claim of racial bias brought by the Equal Employment Opportunity Commission (EEOC). The EEOC alleged that Southern Valley violated Title VII by terminating almost all American workers while retaining most of its workers from Mexico. The EEOC also claimed that American workers were provided with "lesser job opportunities," subject to different terms and conditions of employment such as delayed starting times and early stop times, or denied the opportunity to work at all, while Mexican workers were permitted to continue working. In addition to the monetary settlement, Southern Valley agreed to exercise good faith and implement nondiscriminatory hiring practices by recruiting and retaining qualified American workers and African-American workers for all farm work positions.

Similarly, in EEOC v. PBM Graphics, Inc., US District Court for the Middle District of North Carolina, No. 1:11-CV-00805, printing company PBM Graphics (PBM) agreed to settle a national origin claim brought by the EEOC for $334,000. The EEOC claimed that PBM violated Title VII by refusing to place and/or assign non-Hispanic workers to its core group of regular temporary workers in light bindery production jobs who would obtain work from PBM unless otherwise notified, as opposed to other temporary workers who were only used by PBM on an as needed basis. The core group of 50 to 75 workers was disproportionately Hispanic and excluded otherwise qualified non-Hispanic temporary workers. The EEOC also alleged that PBM failed to assign non-Hispanic workers additional work hours when compared to similarly qualified Hispanic temporary workers, thereby providing the Hispanic workers with greater earning potential. In addition to the monetary settlement, PBM must provide annual training to all its managers and supervisors on Title VII and national origin discrimination. PBM is also required to post notices to all employees of the lawsuit and employee rights under federal antidiscrimination laws and to provide periodic updates to the EEOC.

Likewise, a Hampton Inn franchise agreed to pay $85,000 to settle a discrimination lawsuit brought by the EEOC alleging that the employer unlawfully terminated white workers based on their race (Caucasian) and their national origin (non-Hispanic) because management believed that they were lazy as compared to Hispanic workers. The EEOC claimed that management's negative stereotyping of white and non-Hispanic workers was a clear violation of Title VII and antidiscrimination laws. See EEOC v. Century Shree Corporation and Century Rama, Inc., US District Court for the District of Colorado, Case No. 11-cv-2558-REB-CBS. As part of the settlement, the Hampton Inn was also permanently enjoined from engaging in future discrimination and required to provide discrimination training to all owners, managers and supervisors. The victims were also offered reinstatement to their original positions.

Advice for Employers

In order to minimize liability and avoid discrimination claims, including reverse discrimination claims, it is best practice for employers to implement policies prohibiting discrimination of any kind based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. It is critical for employers to provide training on discrimination and harassment to all employees and supervisors. Employers should also make sure that all decisions regarding hiring, firing and discipline, as well as benefits, compensation, and terms and conditions of employment, are based on legitimate and nondiscriminatory reasons, and not because an employee is or is not part of a protected class. Lastly, employers and supervisors should avoid making assumptions and negatively stereotyping particular groups when making employment decisions.

Additional Resources

Employee Management > EEO - Discrimination

How to Prevent Discrimination in the Workplace