“Reverse Discrimination” Prohibited Under Federal Law

Employers must also keep in mind that Title VII of the Civil Rights Act of 1964, as amended, prohibits discrimination based on certain protected characteristics, including discrimination against members of the majority groups of each protected characteristic. In other words, “reverse discrimination” is unlawful. So, when Title VII says it is an unlawful employment practice for an employer to refuse to hire, or to discharge, or to discriminate against any individual because of such individual’s race, that prohibition protects white individuals in the same way it protects individuals of minority group races.

For example, in 2021, the federal jury in the Western District of North Carolina case Duvall v. Novant Health, Inc. found that the white, male plaintiff had been unlawfully discriminated against due to his race and sex. Mr. Duvall alleged that his employer had fired him as part of its goal to achieve racial and gender diversity, in violation of Title VII, and the jury agreed.

As we can see, it is important to analyze the representation of protected characteristics as part of a company’s wholistic approach to monitoring its diversity efforts, but it is inappropriate to make hiring decisions toward individuals of any group due solely to their membership in that group.

Where Do Employers Go from Here?

It is important to remember that these laws are constantly evolving over time. Prohibitions and limitations like those currently being tested in Florida and Texas should give employers pause before implementing DE&I trainings that were prepared before the limitations came about. Further, training for employees on topics such as implicit bias and many forms of discrimination likely need to be revised for certain states, rather than using a one-size-fits-all approach for training programs across the country. And, once those revisions are made, they must be revisited often to account for changes to the legal landscape.

As for hiring plans related to diversity, employers should ensure that the focus is on hiring the most qualified employees from a diverse applicant pool. DE&I initiatives should remove barriers and create an inclusive workplace in order to attract candidates from all backgrounds. Note that specific quotas based on the hiring or retention of certain gender, ethnic background, or other categorical aspects are typically not going to withstand legal scrutiny.

Employers should monitor state law developments in all states in which they have employees performing work. Before offering or requiring any equal employment or DE&I trainings, ensure that the programs are up to date on legal compliance. Due to the quick pace at which DE&I laws have been changing as of late, employers will need to review their policies and trainings more frequently than they may have before. Consider consulting experienced equal employment opportunity and DE&I counsel to be best protect your company.

Emma Chase, Employment Law Attorney Littler Charlotte Office echase@littler.com www.littler.com

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