Efforts against discrimination have aimed at reducing disparities among minority or unequally-utilized populations. Some regulations have given preferential treatment to minorities in an effort to level the opportunities for employment in the workforce. However, these regulations can spur conflict, as they can result in reverse discrimination. Those who are denied employment based on their gender, ethnicity, or other features protected by equal opportunity laws argue that reverse discrimination should be illegalized similarly to traditional discrimination. Current reverse discrimination cases have been based on legal precedent and judicial discretion, as this effect of anti-discrimination law was not delineated when the laws were created.
Traditional discrimination is prohibited on the notion of race, gender, color, nation of origin, and religion. It is specifically prohibited in the 1964 and 1991 Title VII of the Civil Rights Act. Linked with equal opportunity laws is Affirmative Action, which requires managers to increase diversity while not discriminating against employees from majority populations. Reverse discrimination occurs when preferential treatment is given to minority populations over majority populations. However, it is only acceptable if it meets a remedial need and limits harm to the majority. Remedial needs are shown through the ratio of statistical population to work imbalances. Affirmative Action comes with the realization that preferential treatment must be given to the underserved at times for the greater good of society. Critics argue that affirmative action cannot repair the imbalances created by historical discrimination. However, equal opportunity laws also include the disabled and veterans, who do not have similar histories of discrimination, although they have also been discriminated against. The best way to understand how these laws result in reverse discrimination is to review specific cases (Thompson & Morris, 2013).
One case of reverse discrimination occurred when U.S. workers at a company were passed over for employment because foreign workers through the H-1B visa program were cheaper. This drove down wages for the other workers, but it also created unfair hiring practices. The reason the case was successful was because the hiring practices broke Title VII of the Civil Rights Act. It was reverse discrimination on the basis of ethnicity or nation of origin. During the case, the plaintiff argued that the recruitment and exploitation of H-1B workers from South Asia was against the law under the Racketeering Influenced and Corrupt Organizations (RICO) Act and the Trafficking Victims Protection Act (TVPA). The 2013 Koehler vs. Infosys case became a class action lawsuit, the defendants being all non-South Asians who applied but were not hired by Infosys. Infosys did not have a great defense, as 90 percent of its workforce was South Asian. This was compared to two percent of the United States population. This was a very large and obvious discrepancy and resulted in a successful reverse discrimination suit (Green, Grode & Varghese, 2015).
Religion and sexual orientation has also been a subject in reverse discrimination lawsuits. In 2012, the President at Chick-fil-A, a fast food chain, commented that he and the company believed and supported the biblical definition of a family unit. This meant that the company supported marriage only between a male and a female, and it was fairly viewed as anti-homosexual. Sexual orientation is not protected against discrimination in all states. In fact, only 21 states prohibit discrimination based on sexual orientation. This made it difficult to bring suit upon organizations who discriminated based on this value. While no formal case was brought against Chick-fil-A, the comments and anger brought on by the president’s comments stirred debate about what could be done about sexual orientation discrimination in the workplaces of states with no laws against it. Reverse religious discrimination laws became a solution. In a reverse religious discrimination case, non-members of religious groups could sue a supervisor for wrongful termination because they do not share the belief that marriage is between only a man and a woman, or that homosexuality is wrong (Sinclair, 2014).
In every discriminatory law broken, no matter what the basis is, there is an alternative option for the tables to be turned and the reverse of that discrimination to occur. Sexual discrimination has commonly been committed against women in the workplace, but men too suffer discrimination in other cases. While this is not unpredictable, it was not the purpose of the original anti-discriminatory laws, so the application of laws in reverse discrimination are created by precedent and the judge’s discretion. As cited previously, reverse discrimination is allowable to a certain extent as long as there is a remedial need and limiting harm. One aspect of discrimination and reverse discrimination laws that allows courts to decide the direction of cases is that there must be a specific law against the discrimination, or another avenue must be found to proceed with litigation. Such is the theoretical case of discrimination based on sexual orientation in a state that does not prohibit it. Thankfully, for those who suffer reverse discrimination, traditional equal opportunity laws usually apply both directions. In those cases where there is not precedent or specific law, judges may interpret the law and decide discrimination based on his or her own discretion. As the term reverse discrimination has become more well-known and precedents have been created, there are less loopholes for discrimination to occur in traditional or reverse directions.
- Green, B. S., Grode, J. A., & Varghese, A. (2015). Immigration action: The civil litigation side of employing foreign nationals. ABA Journal of Labor & Employment Law, 30(2), 205-226. Retrieved from http://search.proquest.com/docview/1728717394?accountid=458
- Sinclair, A. J. (2014). Delimiting title VII: Reverse religious discrimination and proxy claims in employment discrimination litigation. Vanderbilt Law Review, 67(1), 239-273. Retrieved from http://search.proquest.com/docview/1503108603?accountid=458
- Thompson, J. L., & Morris, S. B. (2013). What factors influence judges’ rulings about the legality of affirmative action plans? Journal of Business and Psychology, 28(4), 411-424. doi:http://dx.doi.org/10.1007/s10869-013-9292-y