Reverse Discrimination in the Workplace
Since the 1970’s, the overall issue of reverse discrimination has been increasingly been brought to the forefront. Part of the reason for this was the passage of the Civil Rights Act of 1964. This outlawed racial segregation at polling stations, in the workplace, education and any other facilities or services that were provided to the general public. To enforce the different provisions of the act, the Equal Employment Opportunity Commission (EEOC) was created. They would use one of the mechanisms (racial hiring quotas), to force various instances of discrimination to end. (Skog, 2007) However, this system would spark counter claims from the majority, who believe that these laws discriminate against them, based on the fact that someone is in the minority. This would lead to a series of law suits, alleging instances of racial discrimination. Where, someone was hired for a particular job based on the fact that they belong to a certain racial group, not who is the most qualified. A good example as to how serious the situation was becoming; occurred in the Supreme Court case Regents of University of California vs. Bakke. This 1978 decision, said that applying racial quotas in education was illegal. This is because, setting an arbitrary number as to who should be admitted, is in itself a form of discrimination by not going after the most qualified candidate. (“Regents of the University of California vs. Bakke,” 2009) Since quotas are a part of the Civil Rights Act of 1964, meant that it would only be a matter of time until this aspect of the law would be challenged in workplace, through a series of cases. As a result, this has caused the role of reverse discrimination to take on an evolving one, as various lawsuits are shaping how the Civil Rights Act of 1964 is enforced. It is through examining the most significant cases that have occurred; that will provide the greatest insights as to how they are shaping the law.
The Issue of Reverse Discrimination in the Workplace Today
The more time that passes since the passage of the Civil Rights Act of 1964, the clearer it is becoming that the overall economic mobility of African-Americans have improved. While more needs to be done in certain areas; in the aspect of the workplace, the existing laws are starting to become obsolete. Especially when you consider the fact that there is now an African-American as President. What is happening, is the various provisions of the Civil Rights Act of 1964, quotas in particular, have become a major sticking point for a number of reverse discrimination law suits. This is because, the overall issue of quotas is dictating to hiring managers who they should be hiring. While it is important, to ensure that everyone should be treated fairly, quotas take this away by forcing a certain number of candidates to be hired for certain positions, based on their racial group. Over the course of time, this has morphed into a twisted quota system that discriminates against nearly everyone. A good example of this can be seen in the recent United States Supreme Court Case, Ricci v. DeStefano. What happened was; the city of New Haven, Connecticut had an exam for determining who would be promoted to supervisor in the fire department. After one Latino and no African-Americans met the minimum requirements, the city threw out the results. The Latino and white firefighters who met the basic requirements claimed; that the city engaged in reverse discrimination by throwing the test scores. In a 5 — 4 decision, the Supreme Court agreed. With Justice Anthony Kennedy saying, “The city looked at the results, and it classified the successful and unsuccessful applicants by race. And you want us to say this isn’t using race to decide (who should be hired) I have trouble with this argument.” (Richey, 2009) What this shows, is that the quotas system was in place with the best of intentions. Yet, it has now affected hiring decisions because administrators and managers are afraid of being in violation of the law. The City of New Haven was afraid to hire someone based upon the fact that no African-Americans met the minimum requirements. This caused fears that there could be allegations of discrimination, in an era when such accusations can mean a flood of civil law suits, the results were thrown out. Then to make matters worse, the city claimed that it is not discriminating against the Latino and white firefighters, when clearly it was. (Mears, 2009)
However, to fully understand how the quota system is only fueling the overall amounts of reverse discrimination cases; requires that you look at series of Supreme Court and Federal Court decisions that have shaped how the law is applied. A good example, as to how these cases are shaping the ways that the law is applied to this matter, would include: the Supreme Court case United States vs. Paradise. In this 1987 case, the U.S. Supreme Court would hear arguments as to how the State of Alabama would promote black officers for the higher levels of command, within the department. After going through a series of procedures, it was determined that promoting one black officer for every one white officer would provide the greatest benefit. However, after engaging in such a policy for a year, a Federal Court told the department that they could scale back such procedures. At which point, the United States government brought a law suit against the state. Where, they allege that the state was in violation of the law by not having such a system in place. The state claimed that forcing them to engage in a one for one promotion system is reverse discrimination. As a result, the Supreme Court ruled that the one for one policy was Constitutional. This is because it provides a limited scope, for helping advance opportunities for minorities. (“United States vs. Paradise,” 2010) What this shows, is the overall mixed signals that many employers and governments are receiving from the courts. Where, under the law it is okay to have a one for one hiring system. Yet, if you slant the system towards a particular group or engage in policy for to long, you could using a form of reverse discrimination. This is significant, because the lower courts apply previous case law, to determine the most appropriate course of action. When you look at this Supreme Court decision, it tells employers that they must be hiring people who are in the minority for a certain amount of time. Yet, it does not tell them the length of time and how such a policy should be implemented. This only adds to the overall law suits, as employers are confused about what is most legal hiring policy that should be in place.
A third way that the quota system is fueling the overall amount of reverse discrimination cases; can be seen by looking no further than: the Supreme Court case Parents Involved in Community Schools vs. Seattle School District Number 1. In this particular case, the Seattle School District allowed students, who are entering high school the chance to choose which school in the district they would like to attend. Because certain schools were more popular than others, which meant that some students would not be able to attend their first choice. To determine which students would go to what schools, a tie breaker system was developed. This used race as a way to ensure that school was in line with the racial demographics of the district. What made the system so controversial was the fact, that it distinguished whites from blacks, Latinos and Asian-Americans as other. This separation between whites and the other minorities; was claimed, by the non-profit organization Parents Involved in Community Schools, to be in violation of the Equal Protection Clause of the Fourteenth Amendment and the Civil Rights Act of 1964. What makes this case so intriguing is the fact that a previous Supreme Court case (Meredith vs. Jefferson County Board of Education) banned school districts from assigning students to any school for the sole purpose of achieving racial integration and it refused to acknowledge racial rebalancing based on changes in demographics. In a 5 — 4 decision; the Supreme Court sided with the school district. Giving the opinion of the court, Justice Stevens said, “The fact that Seattle has ceased using the racial tiebreaker pending the outcome here is not dispositive, since the district vigorously defends its program’s constitutionality, and nowhere suggests that it will not resume using race to assign students if it prevails.” What this shows is that when the school district is acting within the law, the overall way that the quota system is designed, means that slight variations could bring about civil rights law suits. This is important because the contradiction among the different Supreme Court cases such as that of Meredith vs. Jefferson County Board of Education, causes confusion as to if discrimination or reverse discrimination is occurring. The way that this relates to the work place, is that any kind of slight variation in the quota system can open the flood gates for these kinds of suits to occur. Then, when the court does not provide consistency in their rulings it creates even more confusion.
When you look beyond the quota system, it is clear that this basic principal, of taking something away from one group and giving preferential treatment to another; is just one of the causes that is helping to fuel reverse discrimination law suits. However, like what was stated earlier, another reason that is helping to fuel various reverse discrimination lawsuits is: because of inconsistent rulings on the matter from the courts. it’s no secret, that in many of the discrimination and reverse discrimination law suits the courts have a track record of being divided on the issue. This is because the court system relies on the various judges, interpreting the law based on previous court decisions and their own personal interpretation of the law. These two factors, add to the overall amounts of confusion, as the inconsistent rulings create an atmosphere of reverse discrimination. A good example of this; can be seen in a court case out the U.S. District Court in Western New York, Pasternak vs. Baines. What happened was: Mark Pasternak was a white, youth aid that worked for New York State Office of Child and Family Services (NYSOCFS). In 1995 he was passed over for promotion in favor of an African-American named Tommy Baines. (“Court Decides Reverse Racial Harassment Case,” 2006) According to accounts from Pasternak, after Baines was in the position a short while he would engage in a three-year pattern of reverse discrimination. He often, encouraged the various African-American members of the staff to band together against him. Where, Pasternak said he would often be referred to as a “cracker and a stupid white boy.” He then said, that Baines told him when he was first promoted to the position, “You’re a white boy, and I don’t like white boys. Handle it.” (Austin, 2007) at first, the claims from Pasternak were denied as unfounded accusations, yet an independent investigation revealed that such behavior was being directed at him. The state did sanction Baines for his remarks by allowing him to remain as Pasternak’s supervisor, fining him $2,000.00 and giving him a verbal warning. The situation did nothing to alleviate the tension, as Pasternak began to have psychological problems and was forced to take numerous leaves of absence. The third time that he took a leave of absence; he was fired for extensive absenteeism. As result, Pasternak sued the NYSOCFS, for reverse discrimination and alleged that commissioner John Johnson allowed Baines to knowingly engage in such activities. Pasternak was given the opportunity to return to the same position with Baines as his supervisor. Yet, with the racially charged atmosphere he refused, unless they could guarantee that Baines and him would not be working together. During the court proceedings, the defense argued that the case should be thrown out; because Pasternak can not show that there was a consistent pattern of racial discrimination (claiming that he is reaching conclusions based on isolated incidents). They then stated that Federal law requires: for any kind of discrimination law suit to move forward, a consistent pattern of discrimination must be established. (“Court Decides Reverse Racial Harassment Case,” 2006) After hearing, both arguments, the jury agreed that Pasternak was in fact discriminated against because he was white, awarding him $150,000.00 in damages. After winning the case Pasternak’s attorney commented about Baines actions by saying, “Tommy Baines never denied saying those things, and I certainly pointed that out to the jury in my closing argument.” (Austin, 2007)
What this shows; is that the politically correct atmosphere of any kind of possible discrimination suit has given some people (who are in the minorities) a free pass to engage in their own forms of racial discrimination. When these actions are complained about by the people they are discriminating against; the administrators and managers are reluctant to root out the problem. For out of fear, that they could be the subject of a discrimination law suit or face accusations themselves that they are engaging in racial discrimination. This means, that when situations such as: the one involving Pasternak and Baines exist, discrimination only continues in a different form. This is because the courts have made inconsistent rulings. This inconsistency, allows for the atmosphere of reverse discrimination to occur. Due to the fact, that the penalties are to stiff for those engaging in such activities; at which point, the organization could face the negative publicity and public accusations that they are discriminating against the employee who is doing reverse discrimination. During a time when those people and organizations that are discovered to be racist are looked down upon, this could mean the end of careers and livelihoods. To avoid such confrontations, most organizations will take more of a hands off approach to reverse discrimination.
While the above situation may sound like an isolated incident, the reality is that reverse discrimination in the work place is common at certain institutions. One of the most notable would include the very organization that is designed to enforce the different civil rights law, the EEOC. In the case Terry vs. Gallegos, Joseph Terry, a white lawyer for the commission was passed over 10 times for: the position of EEOC Deputy General Council, in favor of candidates who are of African-American decent. Realizing that he was the victim of reverse discrimination; he sued the EEOC and was promoted to the position, along with receiving monetary damages for the repeated acts of reverse discrimination at the hands of the government. What makes this case so disturbing is: that this is the second time that the EEOC has been found guilty of violating the very laws it is suppose to be enforcing. In a previous reverse discrimination case (Jurgens vs. Thomas) the EEOC lost a similar lawsuit with the lead council of the EEOC (Richard Komer) commenting about the decision, “It certainly was embarrassing. The EEOC was found guilty of discriminating under the same statutes it was enforcing.” (Berlau, 1997) After this decision, the official hiring quotas at the EEOC were abandoned. However, unofficially both African-American and Hispanic supervisors at the commission wanted to hire “their own.” This unofficial policy allowed the racial imbalance to slip at the EEOC. Where, 50% of the agency’s white collar jobs are held by African-Americans, who make up 9% of the total workforce at the EEOC. (Berlau, 1997) What makes this case so twisted; is the fact that Terry had grown up in the segregated south and became a lawyer to address the various racial injustices that were occurring. He had won several high profile discrimination cases for the agency and was named the 1988 Regional Attorney of the Year. Yet, every time Terry was up for promotion, he was constantly passed over for less qualified minority candidates. In many cases, the people who were promoted had less trial experience and knowledge in working with various civil rights cases. (Berlau, 1997) Terry, filed several complaints with agency, but the matter was never looked into. At the time of the violation, the Regan and Bush Administrations tried to clean up the agency, but key staff continued to embrace the policies of the past. This made it difficult, for upper management to be aware of the problem, much less address concerns of racial preference. (Berlau, 1997) as a result, Terry won his reverse discrimination case, with the government giving him the promotion that he had been seeking for so long. In addition to being awarded all back pay, monetary damages of $150,000.00 and $8,000.00 for emotional distress. With, the court saying, “Many of the minority candidates promoted over Mr. Terry lacked any or all of: the high-level government training Mr. Terry had. The experience in Civil Rights earned by Mr. Terry; the education and technical skills possessed by Mr. Terry; and/or the glowing superior performance reviews Mr. Terry always received from his EEOC bosses.” (“EEOC Attorney Win Reverse Discrimination Case Against EEOC.” 2002)
What this shows is that the EEOC is the biggest violator of the various provisions that it is suppose to enforce, the Civil Rights Act of 1964. However, when it is first discovered that preferences do exist, the agency officially discourages that behavior. Yet, everyone continues to engage in the same actions, despite the courts saying that such activity is illegal. When you combine this with the quota system and the various court cases causing confusion; it only underscores why such behavior is continuing. In the case of the EEOC, they are the worst violators of the law, by not following the same regulations and then looking the other way when such violations occur. This creates an atmosphere of reverse discrimination in the agency as many minority supervisors, will look to find the same kind of minority candidates to fill the position. The reason why is: because of the politically correct atmosphere of the agency, where they do not want to have the negative publicity of being accused of not promoting diversity. Yet, beneath the surface there is a lack of follow through from administrators and supervisors, who are afraid to follow these guidelines. Then, when you combine this with the atmosphere that the quota system is acceptable, only allows the issues of reverse discrimination to flourish. In the case of Terry, this discrimination was obvious because he was the most qualified candidate for the job. Yet, he was continually passed over because he was a white male, instead of being Hispanic or African-American.
Clearly, the issue of reverse discrimination is continuing to be brought to the forefront. This is because the overall changing nature of the law is being influenced by previous court cases and quotas. These two items are what is fueling the number of reverse discrimination cases that are being brought against different employers. What is happening is, the quota system, says that the employee to supervisor demographic must reflect the demographics in the work place. The problem with imposing such a system is: you are discounting the overall qualifications that someone may have to work in a particular position. Instead, basing all hiring decisions on what particular racial group someone belongs to. While this is a good way of increasing the upward mobility of minorities over the short to medium term; such a policy can not be engaged in for long periods of time. Otherwise, instances of reverse discrimination will begin to take place. Then, when you combine this with the fact, that the courts have given contradictory rulings on reverse discrimination; means that administrators, managers and supervisors are confused about the most appropriate policy for hiring / promotions. These different elements together, provide the right environment for reverse discrimination to occur. In some situations such as: the ones involving the court cases Pasternak vs. Baines and Terry vs. Gallegos; these contributed to an atmosphere of reverse discrimination in the work place. This is because, the minorities that were promoted often would engage in policies that would discriminate against the white employees they had working for them. When allegations are alleged that this is taking place; means that the perpetrators will often receive a slap on the hand for engaging in such activities. As the organization, is afraid to crack down on such behavior for out of fear, that they could be the allegations of engaging in discrimination against the one who is doing reverse discrimination. In an era, when political correctness is all the rage, this can be devastating to an organization. As the publicity, from such allegations are played out over and over in the media. This is why; there needs to be adjustments made in the law and court rulings to reflect the realities of reverse discrimination that are occurring in the workplace.
Court Decides Reverse Racial Harassment Case. (2006, October 18). Retrieved February 12, 2010 from HR — BLR website: http://hr.blr.com/HR-news/Discrimination/Racial-Discrimination/Court-Decides-Reverse-Racial-Harassment-Case/
EEOC Attorney Win Reverse Discrimination Case Against EEOC. (2002). Retrieved February 12, 2010 from Adversity website: http://www.adversity.net/c3_tbd.htm
Regents of the University of California vs. Bakke. (2009). Retrieved February 10, 2010 from Info Please website: http://www.infoplease.com/ce6/history/A0841421.html
United States vs. Paradise. (2010). Retrieved February 10, 2010 from Find Law website: http://www.law.cornell.edu/supct/html/historics/USSC_CR_0480_0149_ZO.html
Austin, a. (2007, August 24). White Man Sues His Black Boss for Discrimination, Wins $150,000. Retrieved February 12, 2010 from Buzzle website: http://www.buzzle.com/articles/white-man-sues-his-black-boss-for-discrimination-wins-150000.html
Berlau, J. (1997). Discrimination at the Opportunity Commission. Retrieved February 12, 2010 from BNet website: http://findarticles.com/p/articles/mi_m1571/is_n18_v13/ai_19403271/
Mears, B. (2009, June 29). High Court Backs Fire Fighters Reverse Discrimination Suit. Retrieved February 10, 2010 from CNN website: http://www.cnn.com/2009/POLITICS/06/29/supreme.court.discrimination/index.html
Richey, W. (2009, April 23). Reverse Discrimination Case Splits Supreme Court. Retrieved February 10, 2010 from the Christian Science Monitor website: http://www.csmonitor.com/USA/Justice/2009/0423/p02s01-usju.html
Skog, J. (2007). The Civil Rights Act of 1964. Minneapolis, MN: Compass Point Books.
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