While driving through the frigid Baltimore weather this morning, the classic “White Christmas” played on the radio. Though the ditty is undoubtedly about the singer’s wish to have snow on Christmas Day – and not an expression of racial preference – it got me thinking about the contours of discrimination claims involving white plaintiffs. Given the heightened sensitivities on the issue on both sides of the political aisle at the moment, here’s a brief refresher.
Title VII of the Civil Rights Act of 1964, and many corresponding state and local laws, prohibit employment discrimination against “any individual . . . because of such individual’s race[.]” 42 U.S.C. § 2000e-2(a)(1). Though Title VII, as well as the 13th, 14th, 15th, and 24th Amendments to the Constitution, Civil Rights Acts of 1866, 1870, 1875, 1957, 1960, and 1991, and Voting Rights Acts of 1965, 1970, 1975, 1982, 1992, and 2006, is aimed chiefly at eradicating discrimination against blacks, the law itself does not require that individuals belong to any specific race. As a result, during the Nation’s bicentennial, Justice Thurgood Marshall – arguably the leading champion of civil rights, and the first black Supreme Court justice – wrote for the Court that discrimination against white employees because of their race is just as illegal as discrimination against black employees because of theirs. McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273 (1976). Such claims by white plaintiffs have come to be known as “reverse race discrimination” claims because they involve discrimination against a majority group, rather than discrimination by a majority group.
Reverse Race Discrimination Is Illegal.
A federal court in Illinois recently reaffirmed these principles. Davis v. Bd. of Educ. of Peoria Sch. Dist. No. 150, Case No. 12-1051 (C.D. Ill. Sept. 29, 2016). In that case, Mary Davis, a Caucasian educator who rose through the ranks over the course of two decades to become the Academic Officer, i.e., the third-highest ranking school official in her district, was supervised by Dr. Herschel Hannah and Superintendent Ken Hinton, both of whom are African-Americans. In 2009, while another principal in Davis’s district was going through dismissal proceedings, it came to light that Davis had purchased a Mont Blanc pen and books through Amazon.com using a school credit card. Davis admitted her conduct during the investigation that followed, was charged criminally and pled guilty to obstruction of justice.
After being terminated by the school district due to this conduct, Davis claimed she had been fired because of her race as a white person, and also alleged age discrimination and retaliation. During discovery, Davis identified three other school district employees, all of whom are black, who were disciplined but not terminated for mishandling school funds. Indeed, one of the employees Davis referenced was, unlike her, not even referred to police for an investigation. The school board moved for summary judgment.
The district court rejected the school board’s arguments and allowed Davis’s claim to proceed to trial. The court observed that, “[b]ecause this case presents a claim of reverse discrimination,” Davis needed to show that, instead of being a member of a protected class, there were “‘background circumstances’ that ‘support an inference that the defendant is one of those unusual employers who discriminates against the majority,” such as “‘evidence indicating that there is something ‘fishy’ about the facts at hand.” One way to show this is through “evidence that similarly situated non-whites were treated more favorably.” Slip op. at 13-14.
Here, given that Davis presented evidence that three other African-American employees who had engaged in similar misconduct were not disciplined in the same ways, she had shown “the reasonable inference that Davis was punished for conduct that was tolerated when committed by an African American principal[,]” such that “a reasonable jury could conclude that Davis would have kept her job with the District had she been African American.” Slip op. at 14-17.
Discrimination Against An Employee Or His Family For Alleged Racism, On the Other Hand, Does Not Violate Title VII.
The Fifth Circuit Court of Appeals also reaffirmed these principles recently in a case involving very different facts. Byrnes v. City of Hattiesburg, No. 16-60171 (5th Cir. Nov. 3, 2016) (unpublished). In that case, Alex Byrnes, a Caucasian man contended that he was subjected to a racially hostile work environment when Michael Means, an African American co-worker, threatened to “‘straighten out’ Byrnes’s father because he was a racist.’” Byrnes admitted, though, that Means never said anything about Byrnes’s race to him.
The district court granted summary judgment in favor of the City of Hattiesburg because Byrnes had not shown sufficient evidence of harassment based on his race. (Byrnes also contended that he was the victim of disability discrimination because of purported harassment he was subjected to as an individual with cerebral palsy, a claim the district court also rejected.)
The Fifth Circuit agreed and dismissed Byrnes’s case. As the Court eloquently explained:
Byrnes also claims that Means called his father a racist and that this is direct evidence of racial discrimination. We disagree. Harassing someone because he is a racist (or the son of one) is not the same as harassing someone because of his race. Race is a physical characteristic, whereas racism is a prejudicial belief about someone because of his race. Byrnes failed to show that the alleged harassment based on racism had anything to do with Byrnes’s race. As already discussed, merely observing that Byrnes is Caucasian and Means is African American is not enough to support a claim for race-based harassment.
Slip op. at 5 (emphasis added).
In short, discrimination against any race violates Title VII; discrimination against racial discrimination does not. May your days be merry and bright, and may all your Christmases be white!