?The U.S. Supreme Court recently declined to hear a reverse discrimination and retaliation case brought by two white police officers who opposed a diversity initiative.
The two former Michigan State Police officers claimed they were demoted and fired, respectively, in retaliation for complaining about their employer’s diversity initiative and alleged double standards in disciplining employees.
The police agency said the former officers were disciplined because of their misconduct in handling a transfer of another employee. The U.S. District Court for the Western District of Michigan ruled in favor of the agency in December 2021.
The Supreme Court’s decision lets the district court’s ruling stand. The lower court’s ruling sheds light on when white employees can or cannot claim reverse discrimination.
Under federal law, “the prohibition against discrimination includes discrimination against white employees and applicants. In effect, this means that everyone is in a protected category when it comes to race and gender,” said Cara Crotty, an attorney with Constangy, Brooks, Smith & Prophete in Columbia, S.C.
Background
In 2019, the new director of the Michigan State Police emphasized that diversity was a priority for the agency. In 2020, the Michigan State Police staff was 89.5 percent white and 91 percent male, and 71 out of the 77 first lieutenant posts were held by white males, according to court documents. At a staff meeting, the two plaintiffs said the agency’s diversity initiative hurt the morale of white male officers.
The agency later received a complaint that one of the plaintiffs, who had a rank of inspector, yelled at and badgered another employee. An agency investigation found that the two plaintiffs pressured a subordinate to change scores on an evaluation form in an effort to oppose a lateral transfer for another employee. The investigation concluded the inspector was insubordinate, provided inaccurate and unethical direction to an employee, mishandled the protocols required for a lateral transfer process, and lied about what he had done, according to court documents.
The inspector believed he was being punished for opposing the diversity initiative and complaining about racial remarks a Black employee had made during an off-duty comedy routine. The agency later fired the inspector and demoted the other plaintiff.
To prove discrimination with circumstantial evidence, employees must show that they are a member of a protected class, are qualified for the job, suffered an adverse employment decision and were treated differently than similarly situated employees who weren’t in the protected class. If that is proven, then the employer must show it had a legitimate, nondiscriminatory reason for taking the adverse action.
The district court found the white officers failed to show they were treated differently than nonwhite officers. The plaintiffs pointed to four nonwhite officers who they thought were disciplined less harshly than white officers, but the court found those four individuals were not comparable to the plaintiffs because they didn’t have the same rank, supervisor or alleged misconduct.
Retaliation Claim
In a retaliation claim, a plaintiff must show they engaged in protected activity and the employer knew about this protected activity and subsequently took an adverse employment action because of it.
Workers’ objections to an employment practice are legally protected activity if their supervisors should have reasonably understood that they were complaining about unlawful discrimination; however, it’s not protected activity if the objection is too vague or about general unfairness, the district court explained.
“The complaints cannot just be about a belief or feeling that different treatment is occurring or will occur,” said Luther Wright, an attorney with Ogletree Deakins in Nashville, Tenn. “Complaints or allegations that are really just disagreements with how management handled a particular situation do not constitute reports of discrimination, will not constitute protected activity and will not support a claim for retaliation.”
In this case, the plaintiffs’ “chief concern was that the diversity initiative was unfair to white police officers, not that it illegally discriminated against white males,” the district court said. Furthermore, the plaintiffs did not prove the state police director had any knowledge of their criticisms about the diversity initiative, the court concluded.
“If an employee raises concerns about the organization’s diversity, equity and inclusion (DE&I) practices, this could potentially be considered protected activity,” Crotty said. “Employers should treat such a complaint like any other issue involving potential discrimination or harassment and ensure that the employee does not experience retaliation.”
Best Practices
Employers should design “a DE&I program that truly embraces everyone. That requires an explanation of purpose to all employees and being open to having difficult conversations about past inequities, clearly stated current goals, and the role each employee plays in having a workplace where every person is respected and feels like they belong,” Wright said.
Employers should not implement arbitrary hiring goals or use race in any way in the selection process, Crotty noted.
“Any hiring practice or objective that looks like a quota should be avoided,” she said. “Employers want to make sure that protected characteristics are not a factor in making hiring decisions and that hiring managers are not implicitly invited or expected to make decisions that incorporate those factors.”
Instead, employers should focus recruitment efforts on sources that are likely to provide a diverse pool of candidates, “but they should not state a preference for candidates of any race or gender,” she added. “Ideally, targeted recruitment will increase the diversity of the candidate pools from which an employer is selecting, and through application of a neutral selection process, the workforce will naturally become more diverse.”
