Reverse discrimination is a legal notion that refers to a scenario in which a member of a historically dominant group claims to have been discriminated against because of their race, gender, religion, or other protected traits in favor of a member of a historically disadvantaged group.
When an individual who is not a member of a historically disadvantaged group, such as a White person or a male, believes they have been discriminated against because of affirmative action policies or other efforts to promote diversity and inclusion in the workplace, education, or other areas of public life, this is known as reverse discrimination.
This idea is contentious, and perspectives on whether or not it exists differ.
What Are the Elements to Prove a Reverse Discrimination Case?
When suing for reverse discrimination, the plaintiff must typically show the following elements:
- Membership in a historically dominant group: The plaintiff must be a member of a historically dominant group, such as White or male, and establish that they have been disadvantaged in favor of a member of a historically disadvantaged group.
- Adverse employment action: The plaintiff must demonstrate that they were subjected to an adverse employment action as a result of their membership in the dominant group, such as being refused a job, promotion, or other benefits.
- Preference for a member of a historically disadvantaged group: The plaintiff must demonstrate that the employer or institution in issue preferred a member of a historically disadvantaged group over the plaintiff, such as a person of color, a woman, or another protected group.
- No genuine nondiscriminatory reason: The plaintiff must show that the employer or institution’s choice to favor a member of the historically disadvantaged group was based on no legitimate, nondiscriminatory basis.
Establishing a reverse discrimination lawsuit may be difficult since the plaintiff must show that they were discriminated against because they were a member of a historically powerful group. Nevertheless, affirmative action programs and other measures to promote diversity and inclusion are often seen as lawful and essential to rectify past and continuing imbalances experienced by historically disadvantaged groups.
Typical Examples of Reverse Discrimination Claims in the Workplace
Reverse race discrimination claims in the workplace may take various forms, but the following are some of the most common reverse discrimination examples:
- Promotion: A member of a historically dominant group, such as a White person or a male, may allege that they were passed over for a promotion in favor of a less-qualified member of a historically disadvantaged group, such as a person of color or a female.
- Hiring: A job candidate from a historically dominant group may claim that they were passed over for a position because the employer preferred a member of a historically disadvantaged group, even if the applicant was more qualified.
- Pay: A member of a historically dominant group may allege that they are paid less than a comparably competent member of a historically disadvantaged group due to affirmative action policies or other initiatives to promote diversity and inclusion.
- Training and Development: A member of a historically dominant group may allege that they were denied training or development chances in favor of members of historically disadvantaged groups who were less competent.
- Harassment and Hostile Work Environment: An employee from a historically dominant group may allege that members of historically disadvantaged groups harassed or created a hostile work environment for them.
When it comes to reverse racial discrimination, an example may be a White employee who claims they were passed over for a promotion because of their race in favor of a less-qualified Black employee.
Another example is a corporation that solely promotes historically disadvantaged groups, such as Black, Hispanic, or Native American workers, and does not consider members of traditionally dominant groups for promotions, regardless of credentials or performance.
What If the Employer Claims that Reverse Discrimination is Necessary to Prevent Discrimination Against Non-Privileged Groups?
When an employer asserts that reverse discrimination is required to avoid discrimination against non-privileged groups, it may be a complicated legal matter that requires a thorough assessment of the facts and circumstances of the case.
Some companies may claim that affirmative action programs, for example, are required to address the past and current prejudice and inequities that members of historically disadvantaged groups suffer. They may claim that such measures are required to level the playing field and guarantee that members of historically disadvantaged groups have equal access to opportunities as members of historically dominating groups.
On the other hand, employers must be able to show that their rules are carefully intended to address particular instances of discrimination and do not result in reverse discrimination or unduly harm members of historically powerful groups.
Legal alternatives in such instances may include:
- Using the Equal Employment Opportunity Commission (EEOC) to file a complaint: The EEOC is in charge of examining accusations of employment discrimination and may be able to aid and advise you on the topic.
- Filing a lawsuit: If a person thinks they have been the victim of reverse discrimination, they may file a lawsuit against the company or institution in issue, claiming discrimination based on their membership in a historically dominant group.
- Pursuing mediation or arbitration: Mediation or arbitration may be a less formal and more collaborative method for resolving discrimination claims and may be a good way to avoid going to court.
Discrimination Against Non-Privileged Groups
On the other hand, discrimination against members of historically disadvantaged groups refers to circumstances in which members of historically disadvantaged groups encounter discrimination and prejudice in the employment, education, housing, or other sectors of public life. Discrimination based on race, ethnicity, gender, sexual orientation, handicap, or other protected traits is one example.
Discrimination of this kind may restrict opportunities and perpetuate differences in wealth, education, and other aspects of life. The law protects against such discrimination, and persons who think they have been discriminated against may seek legal redress via the above mechanisms.
Are There Any Defenses to Reverse Discrimination Claim Against an Employer?
Absolutely, an employer may present plausible defenses in response to a reverse discrimination lawsuit. Among the most prevalent defenses are the following:
- Nondiscriminatory cause: An employer may claim that their choice to recruit, promote, or take any other employment action was based on a reasonable, nondiscriminatory cause, such as the candidate’s credentials, experience, or performance. The employer would be required to present proof to back up this allegation.
- BFOQ: A bona fide occupational qualification (BFOQ) is an important trait to the job’s performance, and an employer may claim that their choice was based on one. An employer, for example, may claim that a male actor is required for a male character in a film or play.
- Seniority System: An employer may claim their choice was based on a consistent seniority system rather than any protected attribute.
- Lack of Evidence: An employer may allege insufficient evidence to support the plaintiff’s allegation of reverse discrimination and that the plaintiff has failed to fulfill their burden of proof.
- Unintentional Discrimination: An employer may claim that any negative effect on historically dominant groups was unintended and not the product of a purposeful policy or practice to benefit historically disadvantaged groups.
The efficacy of these defenses may vary depending on the facts and circumstances of each case. A BFOQ defense, for example, may fail if the employer cannot establish that the feature in the issue is actually important to work performance.
An employer may also be required to submit proof to back up assertions of nondiscrimination or the lack of deliberate discrimination.
What Does a Reverse Discrimination Lawyer Do?
A reverse discrimination lawyer is a legal practitioner representing clients claiming they have been subjected to reverse discrimination. These attorneys are well-versed in employment discrimination legislation and have courtroom experience litigating discrimination claims.
Some of the duties of a reverse discrimination lawyer include:
- Legal Advice: A reverse discrimination lawyer may advise and counsel clients who think they have been discriminated against. They can clarify the client’s legal choices and assist them in deciding on the best line of action.
- Investigation: To acquire information to support the client’s case, a reverse discrimination lawyer might investigate the claimed prejudice. This might entail reviewing employment records, interviewing witnesses, and doing legal research.
- Filing a Complaint: A reverse discrimination attorney may assist a client in filing a complaint with the EEOC or another appropriate state or federal body.
- Negotiation and Mediation: A reverse discrimination lawyer may negotiate a settlement or resolution to the discrimination claim with the employer or their legal representatives.
If a settlement cannot be reached, a reverse discrimination lawyer may defend the client in court and argue their case before a judge and jury.
Do I Need a Lawyer for my Reverse Discrimination Case?
If you suspect you have been the victim of prejudice, it is usually a good idea to talk with a discrimination lawyer. Discrimination lawsuits may be complicated, and navigating the legal system without the assistance of an experienced lawyer can be tricky. A reverse discrimination attorney can help you understand your legal rights and alternatives, collect evidence to support your case, and, if necessary, defend you in court.
If you suspect you have been the victim of reverse discrimination, you should consult with a reverse discrimination lawyer. They can advise you on the best course of action based on the strength of your case.
