Reverse Discrimination

The term "reverse discrimination" sometimes is used to describe a type of discrimination wherein members of a majority or historically advantaged group (such as white people or males) are discriminated against based on their race, gender, age, or other protected characteristic.

These types of claims typically arise in the areas of employment or education. Occasionally, the term also is used to negatively describe programs meant to advance or promote minorities and address inequality, such as affirmative action.

While the term "reverse discrimination" is not expressly included in federal civil rights laws, these types of lawsuits are generally brought as discrimination cases under Title VII of the Civil Rights Act of 1964 and other statutes.

Because anti-discrimination laws were originally enacted to prevent discrimination against minorities and groups that were historically disadvantaged and denied opportunities in the workplace, there has sometimes existed a perception that members of majority groups are not protected by the same laws. However, these laws generally prohibit all forms of discrimination based on protected characteristics, including those against members of a majority group (as established by the U.S. Supreme Court's 1976 McDonald vs. Santa Fe Trail Transport Co. decision).

As a result, the term "reverse discrimination" originated to describe these kinds of cases where members of a majority group are claiming they were discriminated against on the basis of their age, race, gender, or other protected characteristic.

What Is Reverse Discrimination?

While "reverse discrimination" is not specifically addressed under federal law, the term typically refers to situations where a member or members of a majority are discriminated against on the basis of a protected factor, such as race or gender.

Common examples of this type of discrimination include a white person who is discriminated against in favor of a racial minority. Another example could perhaps be a man suing an employer because a woman was given favorable treatment at work on account of her gender.

Diversity initiative programs (such as affirmative action) are generally designed to "level the playing field" in the workplace or educational settings. However, they may also run the risk of breaking discrimination laws despite their historical justifications.

Examples of "reverse discrimination" may include:

• Making hiring or promotion decisions in favor of minority groups, despite the experience or seniority of white, male, or other majority applicants
• Hiring or promoting women solely on the basis of their gender over equally or more qualified males
• Refusing to hire or firing of persons under 40 years of age in favor of the hiring of persons over 40 years of age
• Rejecting an applicant for school while admitting a minority applicant solely on the basis of race, as courts have stated that race may only be used as a "factor" in educational applicant decisions

Reverse Discrimination in Employment: The Law

Courts have struggled with various types of discrimination cases, including those considered to be "reverse discrimination."

Under Title VII of the Civil Rights Act of 1964, employers may not discriminate based on race, sex, gender, religion, or national origin, irrespective of who the victim of discrimination might be. In addition, under Title VII, employers may not create programs and policies that would have a "disparate impact" or adverse effect on members of a protected class. However, courts have interpreted this and similar state laws in different ways in discrimination cases with majority (white, male, etc.) plaintiffs. While some forms of discrimination in favor of minorities and historically disadvantaged groups like women have been upheld by courts, others have not. This remains a contentious legal issue.

As with discrimination claims brought by members of historically disadvantaged groups, so-called reverse discrimination claims are not easily proven. The plaintiff has the burden of proving actual discrimination on the part of the employer based on race, sex, or another prohibited basis. Furthermore, a person making the claim must prove the following:

• Evidence that plaintiff is a member of a protected class (for example, a member of a certain race, sex, or religion),
• Similarly situated employees outside the plaintiff's class received more favorable treatment than the plaintiff,
• Information that supports that the employer discriminates against historically privileged or majority groups, and
• Plaintiff performed the job satisfactorily (if part of a promotion decision).

Reverse Discrimination, Affirmative Action, and the Supreme Court

The U.S. Supreme Court upheld the use of affirmative action in college admissions in its landmark Regents of the University of California v. Bakke (1978) decision, in which a white medical school applicant challenged a university's use of race in admissions. The Court held that race could be one of several factors in a college admissions policy, but that they couldn't use specific quotas based on race or any other single factor (such as age, gender, national origin, etc.).

The Supreme Court addressed another challenge to affirmative action when University of Texas applicant Abigail Fisher, who is white, was denied admission to the school in 2008. She argued that, by using race as a factor in the application process, she and other white applicants were disadvantaged and thus discriminated against. However, the Court again held, in Fisher v. University of Texas at Austin (2016), that "the race-conscious admissions program in use at the time of petitioner's application is lawful under the Equal Protection Clause."

In October 2022, the Supreme Court heard arguments in two cases in which the plaintiffs challenged the continued use of affirmative action in college admissions. Decisions in those cases are expected in 2023. While the cases involved affirmative action in the educational context only, the decisions could have implications for the use of affirmative action in employment, as well.

What to Do if You Suspect Employment Discrimination

If you believe you were denied a job or promotion because of your race, gender, religion, or any other impermissible factor, you may wish to file a charge of employment discrimination against your employer with the Equal Employment Opportunity Commission (EEOC). The EEOC is the federal agency that handles these types of claims. You might also want to contact your state's equivalent of the EEOC.

Learn More About "Reverse Discrimination" From an Attorney

The strength of a discrimination claim, including a claim of reverse discrimination, hangs entirely upon the facts of your individual situation and the applicable laws and regulations. A lawyer can help assess your chances of success in your claim and give valuable advice about the collection and preservation of evidence. Find a local employment law attorney today to learn more.