This paper examines reverse discrimination in the context of business hiring practices and equal employment opportunity law. It defines reverse discrimination as the denial of employment to certain races or genders in order to meet hiring quotas, and explores the tension between affirmative action policies and fair treatment of all applicants. Drawing on Supreme Court cases, federal legislation rooted in the Civil Rights Act of 1964, and academic sources, the paper analyzes how employers can design hiring, training, and promotion programs that comply with the law while avoiding discriminatory outcomes. The paper also considers reverse discrimination claims in higher education and emerging categories such as age and appearance.
The purpose of this paper is to introduce, discuss, and analyze the topic of discrimination in business. Specifically, it will compare and contrast the definition of reverse discrimination and explain how equal employment laws relate to equal employment opportunity. Reverse discrimination is the practice of denying employment to certain races or genders in order to meet hiring quotas or fill positions according to racial composition targets. It attempts to hire more minorities to help them prosper and advance in business, but many people feel those hiring choices are discriminatory toward others who are not members of the targeted group.
All employers face the challenge of hiring an equal number of women and people of color, as well as white employees, from a pool of qualified applicants. This is a challenging and complex task. As one author notes, "Confronting the challenge of equal employment opportunity is a continuing and complex responsibility for all employers" (Gullett, 2000, p. 107). Equal employment opportunity laws were created to level the employment playing field and give every qualified applicant access to the same jobs. However, opponents argue that many employers pass over white or male applicants who are qualified for a position simply because they do not have enough women and minorities on the payroll. This is how reverse discrimination operates in practice.
Proponents feel that affirmative action helps create a diverse workforce that is fair to all, while opponents view it as simply another form of discrimination, albeit one veiled in federal law. As Gullett explains, "Affirmative action provides some consideration of a person's race, gender, or ethnicity in making decisions for selection, promotion, retention, or other personnel action" (Gullett, 2000, p. 107). When affirmative action is misapplied or misunderstood, problems can arise and charges of reverse discrimination may follow. It is the employer's responsibility to understand employment laws and how they affect hiring practices.
Equal employment laws were created in the wake of the Civil Rights Act of 1964. They were intended to diversify business and industry and create more opportunities for all races, ethnicities, and genders. They were also designed to rectify previous employment practices that were genuinely discriminatory. What generally gets a company in trouble with racial discrimination is when it sets policies that favor one race over another — even if that group is underrepresented among its employees — particularly when compared to the surrounding community.
There have been many Supreme Court cases addressing these issues. For example, a company may realize that its supervisors are mainly white males and therefore create an affirmative action program to promote more women, minorities, and disabled employees to supervisory roles, even when those candidates have less experience than white male counterparts. Gullett discusses one such case involving a government agency that implemented such a plan: "Long-term percentage goals were set to reflect the market, but no hard and fast timetables were established. In carrying out the plan, the Department of Transportation for the county considered race, ethnicity, and gender as factors in making hiring and promotion decisions" (Gullett, 2000, p. 107).
In that particular case, a woman applied for a dispatcher position and, since no woman had ever held the role, was promoted over a male candidate who had scored slightly higher on the qualifying test. The Supreme Court ruled that the hiring decision was justified because the agency had several qualified candidates following testing, and the decision to hire a woman — who was underrepresented in the workforce — was legal given that only one of the qualified candidates could receive the job.
Equal employment laws were also meant to rectify inequitable contracting practices. Courts ruled against the practices of the City of Richmond, Virginia, for example, finding that despite a large African American population, the city's construction contracts did not go to enough Black contractors. The city was required to create more employment opportunities for Black contractors as a result. This is precisely the type of situation that equal employment laws were created to address.
How does an employer guard against reverse discrimination when designing equal employment opportunities? Gullett contends, "Greater emphasis may also need to be placed on less intrusive methods of inclusion such as widening the scope of recruitment and providing greater training opportunities for women and minorities" (Gullett, 2000, p. 107). Clearly, employers must consider changing not only their hiring practices but also their training and promotion programs when minorities remain underrepresented in their organizations.
"Practical guidance for fair and legal hiring"
"Affirmative action controversies in college admissions"
Sander, R. H. (2004). A systemic analysis of affirmative action in American law schools. Stanford Law Review, 57(2), 367+.
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