"Reverse Discrimination" and DEI: Understanding the New US Landscape

Haley Morrison and Susan Gross Sholinsky, Members of the Firm in the Labor and Employment practice, co-authored an article in Ius Laboris, titled "'Reverse Discrimination' and DEI: Understanding the New US Landscape."

Following is an excerpt:

This time of year brings several global observances spotlighting anti-discrimination. It is a timely moment then to assess shifting US enforcement trends on discrimination law. Federal agencies are increasingly targeting DEI initiatives and encouraging discrimination claims from majority‑group employees. This signals a noteworthy risk-change for employers. Our US experts explore further below.

Title VII of the Civil Rights Act of 1964 (‘Title VII’) is the core US federal statute prohibiting employment discrimination. Among other things, Title VII established the Equal Employment Opportunity Commission (EEOC), the federal administrative agency that enforces Title VII and other similar laws. It also declared unlawful various forms of employment discrimination against individuals because of their race, colour, religion, sex, or national origin. An individual seeking to challenge unfair treatment by an employer must establish which of these protected classes was the basis of the alleged unlawful discrimination.

In the past, those bringing claims have typically been in, what might be described as, historically disadvantaged groups. Increasingly, however, it is being recognised in the US that all individuals belong to Title VII’s protected classes. After sixty-plus years, equal opportunity legislation is no longer just for historically disadvantaged groups. Instead, today’s regulatory environment increasingly favours so-called “reverse discrimination” claims. This describes claims brought by majority-group employees, namely white men, and is supported by recent case law and driven by the executive branch’s policy priorities.