How to Avoid Reverse Discrimination

Diversity executives do all they can to encourage minorities and females to apply for jobs and promotions, often expanding talent development initiatives to ensure all employees have an equal chance to succeed.

But they can overreach in their outreach and selection procedures, either inadvertently or deliberately leaving out white males and thereby opening the door for reverse discrimination claims.

While the Civil Rights Act of 1962 was passed to promote equality among races and genders, many people misperceive that it doesn’t apply to historically advantaged groups such as white males, said Douglas N. Silverstein, an attorney with Kesluk & Silverstein in Los Angeles specializing in employment law.

“Anytime you treat people who are in a particular classification better or worse than others, you are always subjecting yourself to a potential discrimination claim — whether traditional or reverse,” Silverstein said.

In 2012, there were 6,251 charges filed alleging gender discrimination against males and 4,007 cases alleging racial discrimination against whites, according to the Equal Employment Opportunity Commission, or EEOC. Reverse discrimination lawsuits also can be filed in state courts for violation of local or state laws.

“We don’t recognize the term or the concept of reverse discrimination,” said James Ryan, EEOC spokesman. “Treating people differently because of their race, national origin, color or religion is always wrong and always illegal. There are no forward or reverse gears when it comes to discrimination — it always demeans the individual, the company and the nation, so all discrimination is ‘reverse.’”

The EEOC refrains from using the term, but Merriam-Webster defines reverse discrimination as discrimination against whites or males.

The number of charges in the aforementioned categories has increased every year for the last five years, according to the EEOC. In 2008, there were 5,677 charges filed alleging gender discrimination against males and 3,543 cases alleging racial discrimination against whites.
However, this is a small number compared to the total number of cases filed. In 2012, there were 33,522 total charges based on race, and 30,356 based on sex.

While the problem of reverse discrimination is small compared to traditional discrimination, a number of white males have won millions in such cases against employers, Silverstein said.
For example, last year, the New York State Supreme Court ordered the city of Buffalo to pay more than $2.5 million to 12 white male firefighters; the city’s fire department unlawfully allowed promotion lists with the men’s names on them to expire to promote minority firefighters instead.

“HR managers should clearly articulate and document their reasons as to why a particular hiring choice was made, particularly if two potential hires are essentially comparable,” Silverstein said. “Additionally, make sure all hiring standards and policies are uniformly applied.”

Two companies agreed to share their strategies to avoid reverse discrimination in the following sketches.

Walgreen Co. — Promoting Inclusion
“There is certainly a real potential for overreach in any employer’s quest to be diverse, said Steve Pemberton, chief divisional vice president, diversity and inclusion at drugstore chain Walgreen Co.

Diversity executives need to consistently guard against those possibilities, he said, though overreaching is not born of bad intentions. “It comes from a desire to rightfully provide opportunity for all; we have to make sure we do not unintentionally restrict access to others.”

For instance, reverse discrimination can occur when organizations create development programs only for some segments of the workforce. Pemberton said people would be understandably confused that such an opportunity isn’t open to them, and they have a right to question why.

Walgreen has a development program, a leadership academy and recently launched Walgreens University. Rather than creating separate division training modules, the company is embedding diversity and inclusion into all of its modules and learning programs.

Pemberton said having a separate leadership program for women, for example, could create an implicit assumption or challenge — that women need a different curriculum, which is not the case.

“Most women would subscribe to the idea that there should be leadership programs open to everyone, and that organizations should make sure that women are represented in those leadership classes — compared to having a separate leadership program for women.”

Every Walgreen employee — including white males — is also encouraged to join any resource or employee network group, such as the firm’s Latino Business Association or Asian Network, and employees can request their own group.

“Historically, many corporations have been represented by white men, so there’s never been a need to create something distinct for white men,” Pemberton said. “If a group of white men came to us and said that they wanted to have a group for themselves, we would provide the necessary infrastructure. We haven’t had that request.”

However, white male managers are immersing themselves in diversity and inclusion, a relatively new initiative for the company — Pemberton’s position was created in 2011. “White male managers ask me how to best teach their teams about diversity and inclusion,” he said. “That’s exactly what we want — proactive thinking about what they should be doing in the current landscape.”

To minimize any type of discrimination, including reverse discrimination, employers can use hiring scorecards, based on the position, functional level or area of the country to determine if any role is dominated by one segment of the population.

“One of the ways we’ve been able to address this is by saying, we have major efforts around diversity, but talent speaks first,” Pemberton said. “Talent and diversity are not mutually exclusive and should belong in the same sentence. If at any point we fail to see that, then we need take it on. We haven’t seen that though.”

While quantitative assessment tests can minimize discriminatory selection, employers have to evaluate whether any such test they are using might have a cultural preference for a specific category of people. If that is the case, then employers have to adjust the instrument accordingly.

Employers also can measure a test’s impact ratio analysis, or IRA, to determine whether there is any statistical significance in personnel action differences between males and females, and minorities and non-minorities.

“The language of the test could be a problem, particularly if the test consistently uses the male gender words ‘he’ and ‘his,’” Pemberton said, “That might have an impact on how individuals might perform on that assessment. It might just be an issue of pronouns, but if the IRA comes back, you have to address that, and make some of the pronouns ‘she’ and ‘hers.’”
Employee engagement metrics also can gauge whether there are systemic problems within a specific group — including white males — that could lead to reverse discrimination claims. Identifying these problems is important to avoid disengagement, Pemberton said.

“You must implement training, leadership development, skill-building and communications efforts to help you address where disengagement is coming from. In other words, make sure you are placing the right ladders against the right wall.”

Deloitte LLP — Promoting Collaboration
Management consulting firm Deloitte LLP minimizes discrimination — traditional or reverse — with a collaborative hiring selection process.

“It’s very common for us to engage a number of people in a process like that,” said Deb DeHaas, chief inclusion officer. “We want to ensure we have a group with diverse experiences and perspectives to base hiring and performance evaluation decisions, in addition to grades and accomplishments. The groups include minorities, women and white males.”

Most of Deloitte’s job availability postings are done online to take advantage of technology to reach people across all backgrounds, she said. The firm uses college campus career center websites, social media and posts openings on job boards, and for experienced hires, referrals are an important consideration. Internally, the firm posts available positions on its careers website.

During the past few years Deloitte has hired roughly 17,000 employees annually. In all hiring decisions, the firm’s goal is to select the person who best fits the requirements of the job assignment. Deloitte uses assessment tests for defined job descriptions and skill requirements, and a diverse group of hiring managers evaluates tests for those skill requirements when making decisions.

“We have a lot of metrics and analytics in a business like ours,” DeHaas said. “We are constantly reviewing those metrics to determine whether or not there are gaps or something we need to address.”

Deloitte also uses metrics from its annual talent survey to track internal trends, as well as metrics to benchmark the firm against similar organizations.

The company has an external Inclusion Advisory Council made up of diverse leaders in academia and business to help hold leaders accountable and make sure it does everything possible to create an environment where everyone can prosper.

“We’re constantly … measuring, reassessing and looking at relevant indicators to make sure there are aren’t any concerns related to various groups inside the firm,” DeHaas said.

To make sure Deloitte is not overcorrecting for discrimination of protected classes and discriminating against white males, the firm tries to think holistically about the concept of diversity and inclusion.

“We hope to have built a culture where all people within our organization feel that they truly have the ability to thrive, that they have opportunities to grow and learn, and have meaningful experiences that are going to allow them to be very successful,” DeHaas said.

Katie Kuehner-Hebert is a California-based journalist. She can be reached at editor@diversity-executive.com.