Reverse Discrimination Essay, Research Paper

REVERSE DISCRIMINATION:

THE REPRECUSSIONS OF AFFIRMATIVE ACTION

Discrimination in employment has been an issue that has plagued our society throughout history. At the turn of this century it was acceptable to advertise job openings and specifically state that people of a certain race, color, religion, gender, or national origin “need not apply”. A lot has changed over the last 100 years. The proverbial “pendulum” has swung in the direction of federal protection of certain people, but the problem now is that it has swung too far.

Title VII of the 1964 Civil Rights Act states that it is unlawful for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin…” 42 U.S.C. 2000e-2(a)(1). This law was enacted in an effort to set right the wrongs of the past and instill equity in the workplace; yet a new set of wrongs and social injustices have been created. This newly created set of wrongs and injustices are referred to as reverse discrimination. Reverse discrimination is discrimination against a majority class, and is ever increasing in public-sector employment.

Social Equity and Affirmative Action

Affirmative action was instituted to redress the social inequities of past discrimination in employment against what became known as a ‘protected class’ (women and minorities). The goals of affirmative action plans are to increase the representation of historically disadvantaged people in the workplace equal to their representation in the corresponding community and relevant labor market. This formula is how affirmative action became coined as the ‘quota system’.

The financial burden associated with discrimination lawsuits forced employers to implement remedial plans (affirmative action plans), out of fear of noncompliance of TitleVII that ultimately have had the same adverse effects on social equity, yet in a different context.

In Wygant v. Jackson Board of Education, (476 U.S. 293)(1981) the Supreme Court took into account the harmful effects suffered by whites from government policies designed to serve the permissible purpose of redressing the continuing effects of past racial discrimination are constitutionally significant inequities that can be justified only by “compelling” state interests. (Chang 1)

This case dealt with layoff procedures in a public school system during the height of affirmative action. An important aspect of this case was that there had been prior racial discrimination lawsuits litigated in 1976 and again in 1979, Jackson Education Assn. v. Board of Education (Jackson I and Jackson II, respectively). The Board of Education relied upon these cases as proof of past misconduct and racial discrimination in order to validate their current remedial attempts. Nonetheless, the court decided that ultimately, two wrongs do not make a right.

The layoff policy was as such that tenured nonminority faculty members were being laid off while minority faculty members (some of whom were still classified in a probationary status) were retained in order to fulfill remedial requirements. The court found that this policy was in violation of the Equal Protection Clause because the classification for layoff purposes was based solely on race. Specifically, white teachers with seniority had been laid off in order to retain black teachers simply because of their race.

The resulting effect was an increased awareness of the “strict scrutiny” standard as it relates to the constitutionality of affirmative action plans. Validation of these plans has become crucial with respect to all aspects of employment, especially hiring, promotion, and terminations. Statistical analysis proving under representation in the workplace and a documented history of the disparate treatment of a protected class are the key elements of a validated affirmative action plan. Without these key components, an affirmative action plan can be ruled in violation of the Equal Protection Clause (as has been demonstrated by this case and many others, especially in police and fire positions) and ultimately unconstitutional, which opens all employers (public especially) to a wide array of lawsuits.

In Dallas, TX, the fifth circuit struck down the city’s affirmative action plan for the fire department when white and Native American male firefighters sued for being passed over for promotions.

The affirmative action plan called for promoting back, Hispanic, and female firefighters ahead of those others who had scored higher on examinations. The only evidence of racial discrimination to justify the affirmative action plan was a 1976 consent decree between the city and the U.S. Justice Department and a statistical analysis showing that minorities had been underrepresented in higher ranks. Given the minimal evidence of discrimination, the court held the plan to be invalid. (Champagne 1)

The state of California has passed Proposition 209, which prohibits the state from using racial or gender preferences in public employment, public education, or public contracting. The legality of this proposition was tested in the ninth circuit court of appeals by The Coalition for Economic Equity in 1997. The lawsuit was dismissed in 1998 and the court held that Proposition 209 did not violate the Equal Protection Clause of the United States Constitution and is not prohibited by Title VII. (Champagne 1)

The Legal Debate: Title VII Lawsuits

Generally when one hears “Title VII” and “lawsuit” in the same sentence the thought of discrimination against a protected class comes to mind. This is not so much the case anymore. As of 1996, reverse discrimination in federal employment comprised 20% of the Equal Employment Opportunity Commission’s caseload. (Discrimination at the Opportunity Commission, 1)

The EEOC. The most ironic of cases deals with the EEOC itself. Joseph Ray Terry, a civil rights attorney employed by the Commission won a lawsuit against them in 1996 for unlawful employment discrimination with respect to promotions. Terry claimed that he had been passed over for various promotions over an eight-year time period due to his race and gender (white, male). He was a graduate of the EEOC’s candidate development program that was designed to provide the necessary skills for upper-management positions and was well qualified for all of the positions that he had sought to be promoted. However, these positions repeatedly had been filled by less qualified minorities. The Judge ordered the EEOC to pay Mr. Terry $150,000 in damages, and over $8,000 for stress. The amount ordered in back pay was not disclosed. The EEOC was also ordered to promote him to the position of deputy general counsel for which he had been applying. (Reverse Discrimination Case Against EEOC, 2)

According the EEOC’s own 1995 annual report, almost 50% of white-collar jobs within the organization are held by African-Americans, even though they comprise less than 10% of the civilian work force. Additionally, the percentage of Hispanics employed at the EEOC was 200% of the percentage of Hispanics in the civilian work force. “If the EEOC were a private employer, the racial makeup of its workforce would set off alarm bells,” says Clint Bolick, an attorney who worked on the staff of an EEOC commissioner during the eighties and heads the Institute for Justice, a Washington public-interest legal group. (Berleau, 36)

The GAO (General Accounting Office). The U.S. General Accounting Office is the audit and investigative arm of Congress. It employs over 2,000 evaluators and its annual budget is close to $400 million. “It is one of the most powerful agencies in the federal government. Its personnel policies serve as the de facto model for the entire federal government.” (Judge Orders Trial for Diersen’s Reverse and Age Discrimination Claims After Evidence of GAO’s Continuing Retaliation is Presented, 1)

During the 80’s there had been pressure placed on the agency to give preferential treatment to its minority and female evaluators which led to personnel systems known as broadbanding (BB) and more flexibility in the compensation structure through pay-for-performance (PFP). The flexibility in BB allowed less qualified protected class members more latitude in the GS levels, therefore promotions were granted easier. The trend in downsizing federal government agencies aided in the preferential treatment. The older (white, male) employees who had previously complained of the discrimination were forced out through early-outs, buyouts, and selected office closings rather than using seniority-based reduction-in-force procedures, which was the accepted practice. (Judge Orders Trial for Diersen’s Reverse and Age Discrimination Claims After Evidence of GAO’s Continuing Retaliation is Presented, 4)

These issues (plus many others) led Dave Diersen to file an individual and a class action lawsuit for reverse discrimination and age discrimination against the agency, Diersen v. Hinchman, (Case No. 98-1887) on July 30,1998. Diersen had previously filed complaints of these natures using the agency’s in-house grievance procedures, but all were denied. The Judge has ruled that the case should go to trial, but seems to be held up in the courts.

The Burden of Proof

In 1973, McDonnell Douglas Corp. v. Green, 411 U.S. 792, the court stated that the plaintiff must “carry the initial burden of establishing a prima facie (on first look) case of racial discrimination…by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications.” The courts have since then attempted to apply this standard to instances of reverse discrimination, coupling it with the decision handed down by the Supreme Court three years later in McDonald v. Santa Fe Trail stating that Title VII “proscribes racial discrimination in employment against whites in the same terms as nonwhites.”

The D.C. Circuit Court in Harding v. Gray later expanded on this test to add “background evidence” which can be generally divided into two categories: (1) evidence indicting that the particular employer at issue has some reason or inclination to discriminate invidiously against whites,…and (2) evidence indicating that there is something’fishy’ about the facts of the case at hand that raises an inference of discrimination.” This places the burden on the plaintiff (employee) to establish that the defendant (employer) is a ‘unique employer that discriminates against the majority’. (Gianni, 3)

The U.S.3rd Circuit Court of Appeals in September 1999 rejected this line of reasoning in Iadimarco v. Runyon. Judge Theodore McKee wrote an opinion for a three-judge panel stating that the “background circumstances” requirement raises the bar higher for white male plaintiffs than for minority/female plaintiffs and the concept is “irremediably vague and ill-defined.” Judge McKee wrote “All that should be required to establish a prima facie case in the context of ‘reverse discrimination’ is for the plaintiff to present sufficient evidence to allow a fact finder to conclude that the employer is treating some people less favorably than others based upon a trait that is protected under Title VII.” This ruling therefore shifts the burden onto the defendant to refute the discrimination given the ‘totality of the circumstances’ rather than forcing the plaintiff to initially have to present proof that would only become relevant in order to rebut the employer’s explanation of the challenged conduct. (Ginanni, 3)

Conclusion

Victims of discrimination, regardless of skin color or gender, feel the same effects: a brick wall placed between them and their constitutional right of prosperity and equality. Over the last hundred years our societal values (in employment) have swung from an anything goes mentality to the other end of the spectrum, the era of “political correctness” where you are damned if you do and damned if you don’t. Uncertainty prevails. It is apparent, though, that the proverbial “pendulum” is in an evening-out process and trying to find middle ground.

Discrimination is discrimination regardless of what type of form it takes. There is truly only one kind if discrimination and that is where an individual’s rights are infringed upon due to traits in which they have no power to control. Each and every one of us deserves to have the right to freedom and equality given to us by our forefather’s.

Bibliography

REVERSE DISCRIMINATION:

THE REPRECUSSIONS OF AFFIRMATIVE ACTION

Discrimination in employment has been an issue that has plagued our society throughout history. At the turn of this century it was acceptable to advertise job openings and specifically state that people of a certain race, color, religion, gender, or national origin “need not apply”. A lot has changed over the last 100 years. The proverbial “pendulum” has swung in the direction of federal protection of certain people, but the problem now is that it has swung too far.

Title VII of the 1964 Civil Rights Act states that it is unlawful for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin…” 42 U.S.C. 2000e-2(a)(1). This law was enacted in an effort to set right the wrongs of the past and instill equity in the workplace; yet a new set of wrongs and social injustices have been created. This newly created set of wrongs and injustices are referred to as reverse discrimination. Reverse discrimination is discrimination against a majority class, and is ever increasing in public-sector employment.

Social Equity and Affirmative Action

Affirmative action was instituted to redress the social inequities of past discrimination in employment against what became known as a ‘protected class’ (women and minorities). The goals of affirmative action plans are to increase the representation of historically disadvantaged people in the workplace equal to their representation in the corresponding community and relevant labor market. This formula is how affirmative action became coined as the ‘quota system’.

The financial burden associated with discrimination lawsuits forced employers to implement remedial plans (affirmative action plans), out of fear of noncompliance of TitleVII that ultimately have had the same adverse effects on social equity, yet in a different context.

In Wygant v. Jackson Board of Education, (476 U.S. 293)(1981) the Supreme Court took into account the harmful effects suffered by whites from government policies designed to serve the permissible purpose of redressing the continuing effects of past racial discrimination are constitutionally significant inequities that can be justified only by “compelling” state interests. (Chang 1)

This case dealt with layoff procedures in a public school system during the height of affirmative action. An important aspect of this case was that there had been prior racial discrimination lawsuits litigated in 1976 and again in 1979, Jackson Education Assn. v. Board of Education (Jackson I and Jackson II, respectively). The Board of Education relied upon these cases as proof of past misconduct and racial discrimination in order to validate their current remedial attempts. Nonetheless, the court decided that ultimately, two wrongs do not make a right.

The layoff policy was as such that tenured nonminority faculty members were being laid off while minority faculty members (some of whom were still classified in a probationary status) were retained in order to fulfill remedial requirements. The court found that this policy was in violation of the Equal Protection Clause because the classification for layoff purposes was based solely on race. Specifically, white teachers with seniority had been laid off in order to retain black teachers simply because of their race.

The resulting effect was an increased awareness of the “strict scrutiny” standard as it relates to the constitutionality of affirmative action plans. Validation of these plans has become crucial with respect to all aspects of employment, especially hiring, promotion, and terminations. Statistical analysis proving under representation in the workplace and a documented history of the disparate treatment of a protected class are the key elements of a validated affirmative action plan. Without these key components, an affirmative action plan can be ruled in violation of the Equal Protection Clause (as has been demonstrated by this case and many others, especially in police and fire positions) and ultimately unconstitutional, which opens all employers (public especially) to a wide array of lawsuits.

In Dallas, TX, the fifth circuit struck down the city’s affirmative action plan for the fire department when white and Native American male firefighters sued for being passed over for promotions.

The affirmative action plan called for promoting back, Hispanic, and female firefighters ahead of those others who had scored higher on examinations. The only evidence of racial discrimination to justify the affirmative action plan was a 1976 consent decree between the city and the U.S. Justice Department and a statistical analysis showing that minorities had been underrepresented in higher ranks. Given the minimal evidence of discrimination, the court held the plan to be invalid. (Champagne 1)

The state of California has passed Proposition 209, which prohibits the state from using racial or gender preferences in public employment, public education, or public contracting. The legality of this proposition was tested in the ninth circuit court of appeals by The Coalition for Economic Equity in 1997. The lawsuit was dismissed in 1998 and the court held that Proposition 209 did not violate the Equal Protection Clause of the United States Constitution and is not prohibited by Title VII. (Champagne 1)

The Legal Debate: Title VII Lawsuits

Generally when one hears “Title VII” and “lawsuit” in the same sentence the thought of discrimination against a protected class comes to mind. This is not so much the case anymore. As of 1996, reverse discrimination in federal employment comprised 20% of the Equal Employment Opportunity Commission’s caseload. (Discrimination at the Opportunity Commission, 1)

The EEOC. The most ironic of cases deals with the EEOC itself. Joseph Ray Terry, a civil rights attorney employed by the Commission won a lawsuit against them in 1996 for unlawful employment discrimination with respect to promotions. Terry claimed that he had been passed over for various promotions over an eight-year time period due to his race and gender (white, male). He was a graduate of the EEOC’s candidate development program that was designed to provide the necessary skills for upper-management positions and was well qualified for all of the positions that he had sought to be promoted. However, these positions repeatedly had been filled by less qualified minorities. The Judge ordered the EEOC to pay Mr. Terry $150,000 in damages, and over $8,000 for stress. The amount ordered in back pay was not disclosed. The EEOC was also ordered to promote him to the position of deputy general counsel for which he had been applying. (Reverse Discrimination Case Against EEOC, 2)

According the EEOC’s own 1995 annual report, almost 50% of white-collar jobs within the organization are held by African-Americans, even though they comprise less than 10% of the civilian work force. Additionally, the percentage of Hispanics employed at the EEOC was 200% of the percentage of Hispanics in the civilian work force. “If the EEOC were a private employer, the racial makeup of its workforce would set off alarm bells,” says Clint Bolick, an attorney who worked on the staff of an EEOC commissioner during the eighties and heads the Institute for Justice, a Washington public-interest legal group. (Berleau, 36)

The GAO (General Accounting Office). The U.S. General Accounting Office is the audit and investigative arm of Congress. It employs over 2,000 evaluators and its annual budget is close to $400 million. “It is one of the most powerful agencies in the federal government. Its personnel policies serve as the de facto model for the entire federal government.” (Judge Orders Trial for Diersen’s Reverse and Age Discrimination Claims After Evidence of GAO’s Continuing Retaliation is Presented, 1)

During the 80’s there had been pressure placed on the agency to give preferential treatment to its minority and female evaluators which led to personnel systems known as broadbanding (BB) and more flexibility in the compensation structure through pay-for-performance (PFP). The flexibility in BB allowed less qualified protected class members more latitude in the GS levels, therefore promotions were granted easier. The trend in downsizing federal government agencies aided in the preferential treatment. The older (white, male) employees who had previously complained of the discrimination were forced out through early-outs, buyouts, and selected office closings rather than using seniority-based reduction-in-force procedures, which was the accepted practice. (Judge Orders Trial for Diersen’s Reverse and Age Discrimination Claims After Evidence of GAO’s Continuing Retaliation is Presented, 4)

These issues (plus many others) led Dave Diersen to file an individual and a class action lawsuit for reverse discrimination and age discrimination against the agency, Diersen v. Hinchman, (Case No. 98-1887) on July 30,1998. Diersen had previously filed complaints of these natures using the agency’s in-house grievance procedures, but all were denied. The Judge has ruled that the case should go to trial, but seems to be held up in the courts.

The Burden of Proof

In 1973, McDonnell Douglas Corp. v. Green, 411 U.S. 792, the court stated that the plaintiff must “carry the initial burden of establishing a prima facie (on first look) case of racial discrimination…by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications.” The courts have since then attempted to apply this standard to instances of reverse discrimination, coupling it with the decision handed down by the Supreme Court three years later in McDonald v. Santa Fe Trail stating that Title VII “proscribes racial discrimination in employment against whites in the same terms as nonwhites.”

The D.C. Circuit Court in Harding v. Gray later expanded on this test to add “background evidence” which can be generally divided into two categories: (1) evidence indicting that the particular employer at issue has some reason or inclination to discriminate invidiously against whites,…and (2) evidence indicating that there is something’fishy’ about the facts of the case at hand that raises an inference of discrimination.” This places the burden on the plaintiff (employee) to establish that the defendant (employer) is a ‘unique employer that discriminates against the majority’. (Gianni, 3)

The U.S.3rd Circuit Court of Appeals in September 1999 rejected this line of reasoning in Iadimarco v. Runyon. Judge Theodore McKee wrote an opinion for a three-judge panel stating that the “background circumstances” requirement raises the bar higher for white male plaintiffs than for minority/female plaintiffs and the concept is “irremediably vague and ill-defined.” Judge McKee wrote “All that should be required to establish a prima facie case in the context of ‘reverse discrimination’ is for the plaintiff to present sufficient evidence to allow a fact finder to conclude that the employer is treating some people less favorably than others based upon a trait that is protected under Title VII.” This ruling therefore shifts the burden onto the defendant to refute the discrimination given the ‘totality of the circumstances’ rather than forcing the plaintiff to initially have to present proof that would only become relevant in order to rebut the employer’s explanation of the challenged conduct. (Ginanni, 3)

Conclusion

Victims of discrimination, regardless of skin color or gender, feel the same effects: a brick wall placed between them and their constitutional right of prosperity and equality. Over the last hundred years our societal values (in employment) have swung from an anything goes mentality to the other end of the spectrum, the era of “political correctness” where you are damned if you do and damned if you don’t. Uncertainty prevails. It is apparent, though, that the proverbial “pendulum” is in an evening-out process and trying to find middle ground.

Discrimination is discrimination regardless of what type of form it takes. There is truly only one kind if discrimination and that is where an individual’s rights are infringed upon due to traits in which they have no power to control. Each and every one of us deserves to have the right to freedom and equality given to us by our forefather’s.