When Arne Wilberg, a former YouTube employee, sued Google in March 2018, it was not your typical employment discrimination lawsuit. Wilberg accused the company of favoring women and minorities in its internal hiring policies, in turn discriminating against white and Asian men. Earlier that year, former Google engineers James Damore and David Gudeman alleged that the company discriminated against white conservative men, including promoting practices of offering female and minority job applicants extra interviews and streamlining their hiring processes.
Google is not the only company searching for guidance on such issues. Amidst an effort to improve diversity and inclusion in the workplace, and implement zero-tolerance attitudes toward sexual harassment, a backlash of sorts may be welling up, as some attorneys say they’ve seen an increase in “reverse discrimination” lawsuits in recent years.
“I certainly have been more active on reverse discrimination cases in the past year,” Charlotte employment attorney Josh Van Kampen said. “Anecdotally, I’ve noticed an uptick.”
The U.S. Equal Employment Opportunity Commission keeps no official tally of reverse discrimination claims, though Title VII claims for employment discrimination in general have continued to rise, from 36.2 percent in 2016 to 40 percent in 2018. And bringing reverse discrimination lawsuits on behalf of white men is hardly a novel concept, as such suits have been happening for decades.
But some things do seem to be changing. In some of the more recent lawsuits, the crux of the complaint is that female and non-white employees are being given more leeway or second chances before termination, compared to white counterparts being abruptly terminated at the first sign of a performance issue.
“What I’ve observed is that, often, the use of practices like progressive discipline aren’t employed as much when it comes to white males in the workplace,” Van Kampen said. “It’s not to say that this is nefarious and there’s an active bias like you would encounter in a traditional race discrimination case. This could be an offshoot of risk aversion.”
The problem that companies encounter, though, is that their worries about getting hit with a conventional employment discrimination lawsuit, however well intentioned, aren’t a legal defense to a reverse discrimination claim.
“If employers feel that because someone is in a certain demographic, they’re afraid to take action, that’s not what the law requires at all,” Steve Dunn, a former management attorney and current mediator also based in Charlotte, said. “The law allows employers to make decisions on the basis of just about anything, good or bad, as long as it’s not age or race or religion or gender or place of orientation. The law clearly applies to all people exactly the same way. It protects everybody.”
Some attorneys did say that they were unconvinced that there has been any noticeable rise in reverse discrimination cases.
“In fact, when unemployment is low, I see a decline in charges of all kinds,” Greenville, South Carolina, labor and employment lawyer Andy Arnold said. “Folks who find a job quickly usually just move on.”
Dunn echoed the lack of anecdotal evidence, but said he would not be surprised if there has been an overall upward trend.
“It’s just complicated. Even if an employer is using an objective assessment [for hiring or performance management], those things can have results that are discriminatory,” Dunn said. “If you strictly adhere to the results of an assessment, you may do something that has a discriminatory impact. But if you depart from those things in the interest of inclusion or diversity, it can create a claim of reverse discrimination.”
Of the cases Van Kampen has already filed in 2020—he said he’s filed two this month—unequal courses of action for similar behavior have been a root cause.
“When it comes to how an employer is going to react to, say, a sexual harassment allegation, there is a lot less tolerance now,” Van Kampen said. “Because of the #MeToo movement, I think the pressure has ramped up to proceed immediately to termination.”
While this may be a step forward culturally, he said employers need to carefully mind their standards. “I think [zero tolerance] always should have been the case … I certainly don’t subscribe to the notion that white males are more openly targeted. I am saying that employers have to apply uniform standards across racial and sex lines.”
Dunn advised companies facing an employee discipline issue to consider how they’ve treated similar situations in the past and how they’d like to treat similar situations in the future.
This might seem obvious, but it can be a slippery slope. Dunn cites a hypothetical example of an employee, a hard worker widely liked among colleagues, who fails a drug test. The employer wants to cut him a break and afford him a second chance, so they make an exception to company policy to fire employees who fail drug tests. A month later, when a less committed employee with a spotty attendance record and less colleague rapport fails a drug test, if the employer immediately fires him, they’ve acted discriminatorily.
Depending on the race, gender, or religion of each employee, the company might have stumbled right into a reverse discrimination lawsuit.
“I know many companies really worry about the tension between legitimate efforts to promote diversity and inclusion and reverse discrimination,” Dunn said. He encouraged going back to basics and considering formal processes that ensure objective consistency from one employment decision to another, such as point systems or clear HR protocols.
“Whatever decision you’re making, know why you’re making it. Be prepared to tell that story if anyone ever asks,” Dunn said.