But reverse discrimination lawsuits are complicated. In some situations, the plaintiffs may have a point about the fair and equal application of law. Others are easier to brush off as no more than an attempt to reclaim the benefits of old, out-of-date cultural preferences. The situation has become even more fraught as the current federal administration has sought to ban “DEI” initiatives.
California Employment Discrimination Law
California employment discrimination law prohibits discrimination on the basis of:
- race, or color;
- ancestry;
- national origin;
- religion;
- sex (including pregnancy, childbirth, and related medical conditions) as well as sexual orientation, gender or gender expression;
- disability: physical or mental;
- age (40 and older);
- genetic information;
- marital status;
- medical condition, including AIDS/HIV;
- status as a cannabis user;
- political activities, including union activities or affiliations;
- military or veteran status, and
- status as a victim of domestic violence, assault, or stalking.
Age, race, sex and disability are specifically described as protected characteristics under California’s Fair Housing and Employment Act (FEHA). The case law has developed somewhat independently for all of the listed categories.
David F.’s claims
The gist of two of David F’s claims – those based on gender and race – seems to be reverse discrimination claims – that he did not benefit from the protection of the law because he is male, rather than female, for example, or because he is white, rather than a person of color.
The lawsuit is still in its very early stages, and more may become clear about his allegations, once the litigation is in the discovery phase.
Reverse discrimination
On its face, the language of FEHA is neutral. It doesn’t specify which sex is protected or what race. (The only category that is explicitly limited is age.) Legal questions about sex and race are often a swamp of coded language, long established patterns of behavior, and pretext.
Does the employer actively recruit only from Historically Black Colleges and Universities (HBCUs), but not from predominantly White institutions? Is a refusal to promote someone because they refuse to wear “appropriate office attire” really about gender identity? The answers are very dependent on individual facts and situations.
A few bright lines have begun to emerge. In the case of Duvall v. Novant Health, the Fourth Circuit found that Novant Health terminated David Duvall because of his race, sex, or both, in violation of Title VII of the Civil Rights Act of 1964, which is generally similar to the FEHA. The hospital had set certain “targets” for hiring and promoting women and racial minorities. It took great (but not especially convincing) pains to distinguish these targets, expressed as percentage increases, from quotas. The end-of-year bonuses awarded to executives were partially dependent on their ability to hit these percentage targets.
So, no quotas and no bonuses based on ability to hit these quotas. The court also cautioned that race-based training programs can create hostile workplaces when official policy is combined with ongoing stereotyping and explicit or implicit expectations of discriminatory treatment.
The war on DEI initiatives
READ MORE CALIFORNIA LABOR LAW LEGAL NEWS
The current administration has continued to toss chum into the water of equal employment opportunity. Since his first week in office, the President has issued a series of executive orders targeting diversity, equity, and inclusion programs in the public and private sectors. These executive orders are designed to discourage lawful efforts to advance equal opportunity.
It is not clear what effect, if any, this has on California labor law or on employers, except for those that benefit from federal contracts.
The earliest of these directs federal agencies to contractually obligate federal contractors and grantees to certify that they “do not operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws,” while making it clear that the President considers conders DEI to be illegal.
The effect may be limited in practice, but employers should seek advice from experienced employment lawyers on the full ramifications of the EOs and the possibility that the administration’s efforts may spawn more, and perhaps, frivolous lawsuits.
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