Take Care to Avoid Reverse Discrimination Claims

14 July 2014 Labor & Employment Law Perspectives Blog

Most discrimination cases involve claims that an employer discriminated against a minority employee on account of race, against a foreign employee based on national origin, or against a woman on account of gender. A recent case from the Second Circuit Court of Appeals (covering New York, Connecticut and Vermont) is a good reminder, however, that discrimination against U.S. employees based on national origin, or against white employees based on race, or against male employees based on gender, is also prohibited.

In the recent decision, a Caucasian employee was fired by his Japanese-owned company as part of a reduction in force. The employee claimed that only white employees were terminated in the reduction, and that all Japanese employees in the U.S. were retained. He also alleged that the Caucasian employees were terminated, and the Japanese employees retained, solely on account of their national origin. The New York federal district court initially dismissed the employee’s complaint for failure to state a claim, but the appellate court reversed that dismissal and determined the employee could proceed with his case. In part, the appellate court determined the employee could proceed because his complaint adequately alleged he was “treated less favorably than similarly situated employees of other races or national origins.”

What is the lesson here for employers? Employers must take care to avoid any sort of discrimination based on any protected category, even the ones that might not fit traditional notions of protected characteristics. This includes avoiding any sort of “reverse discrimination” against U.S.-born, Caucasian, and/or male employees. For example, an employer should not include Caucasian employees in a reduction in force simply because of their race, and also be aware of the way the inclusion of all races can appear in a reduction in force. Rather, employers should make all adverse employment decisions based on legitimate, non-discriminatory reasons unrelated to protected categories such as race, sex and national origin.

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