Legal

Reverse Discrimination? Nope

By Jon Hyman | The Practical Employer

Reverse Discrimination? Nope

By Jon Hyman | The Practical Employer

W

orkplace diversity has two sides.
One side says that employers cannot discriminate against minorities. The other says that employers cannot discriminate against non-minorities in favor of minorities.

Some people call this reverse discrimination. I just call it discrimination.

For example, Title VII does not define “African-American” or “men” as protected classes; it merely says “race” and “sex.” Thus, if you discriminate against a white person in favor of an African-American, or against a man in favor of a woman, you’ve violated Title VII no differently than the converse.

There are a few exceptions to these general rules.

  • Age: In 2004, in General Dynamics Land Systems v. Cline, the U.S. Supreme Court conclusively ended the debate over whether younger workers can challenge employment decisions favoring older workers. They cannot. According to the Court, the Age Discrimination in Employment Act is “a remedy for unfair preference based on relative youth, leaving complaints of the relatively young outside the statutory concern.”
  • Disability: The Americans with Disabilities Act does not protect the non-disabled. Nothing prohibits an employer from granting preferences to the disabled. Indeed, to alleviate any possible confusion over this point, the ADA contains a specific clause that states that it does not protect those who claim discrimination because of a “lack of disability.”
  • Religion: Because of the First Amendment’s protections of religious freedoms, religious employers are permitted to recognize a “ministerial exception” to Title VII’s prohibition against religious discrimination. Thus, a religious employer can apply a preference to fill positions that convey the Church’s message and carry out its mission.
  • Bona Fide Occupational Qualification: If sex, religion, national origin or age is reasonably necessary to the normal operation of a particular enterprise, and the job qualification at issue relates to the essence, or the central mission, of the employer’s business, then an employer may discriminate based on that protected class.

Let’s all stop worrying about labels and focus our hiring energies on finding the most
qualified candidate.

Most courts now agree that Title VII’s definition of “sex” inherently includes LGBT individuals. If, however, you are going to include “LGBT” in Title VII’s definition of “sex,” then, just as employers cannot discriminate against LGBT employees in favor of non-LGBT employees, employers also cannot reverse the equation.

In light of all of this, consider Philadelphia’s Mazzoni Center, an LGBT-focused health care and
wellness nonprofit.

It recently took some heat in Philly’s LGBT community for hiring a straight woman, Lydia Gonzalez Sciarrino, as its new CEO. Some have criticized her lack of LGBT-specific health care experience (which, if true, would be a valid criticism), while others are more pointed, claiming that her hiring is a shameful “act of violence and deliberate silencing of the very communities Mazzoni is funded to serve.”

The Mazzoni Center defends its decision not only on Sciarrino’s qualifications, but also its nondiscrimination policy:

“When it comes to matters of employment, Mazzoni Center does not discriminate on the basis of race, creed, religion, color, national origin, ancestry, age, sex, gender identification or gender expression, sexual orientation, disability, marital status or any other protected status covered by federal, state or local law. Thus, all employment-related decisions are made solely on the basis of a candidate’s skills, ability, experience, education, training, and other legitimate factors related to the requirements of the job.”

The Mazzoni Center’s board considered Sciarrino the most qualified person who applied. If Title VII covers LGBT-status as sex (which I, and most courts, argue it does), then neither the Mazzoni Center, nor any other employer, can favor an LGBT applicant over a more qualified straight applicant. That would be illegal sex discrimination.

Let me suggest a more practical approach to this issue. If the Mazzoni Center decided that Sciarrino is the most qualified candidate to fill its CEO position, then that business decision should end the discussion. Her sexual orientation should be irrelevant to the conversation. Part of that decision-making process could be the candidates’ understanding of core issues important to the LGBT community. And, if Sciarrino meets that hiring litmus, then who are we (or anyone) to second guess that business judgment.

Employers create legal problems when they hiring via quota filling. “We need a __________ person to fill this position,” is the wrong question. Instead, “We need the best person to fill this position.” Subject to the four exceptions outlined above, best is not only blind, but also the best legal defense to a hiring discrimination claim.


Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. To comment, email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.