Non-Minorities can’t sue on basis of minority discrimination

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in Discrimination and Harassment,Hiring,Human Resources

Good—and somewhat obvious—news: Job applicants who are not members of a protected class can’t sue for discrimination on the basis that an employer’s hiring practices discriminate against minorities.

Recent case: Richie Levine was passed over for a job as a cashier at a Wilkes-Barre Wal-Mart. He thought he knew the reason—his 2004 guilty plea to one count of attempted dissemination of indecent material to a minor, a felony.

Levine sued Wal-Mart, attacking its alleged policy against hiring anyone with a prior felony conviction for “any sex crime of moral turpitude or sexual violence.” That policy, he argued, had a disparate impact on racial minorities because they are more likely to have been convicted of a felony.

The court acknowledged that under the right circumstances, a hiring policy that has a disparate impact on a protected group might be illegal if the policy was not consistent with business necessity. But it dismissed this case, reasoning that even if the practice was illegal, Levine was not a member of a minority group. (Levine v. Wal-Mart, 4:08-CV-114, MD PA, 2008)

Final note: Remember that every hiring criterion should pass the “consistent with business necessity” test. In this case, banning all applicants with sex convictions probably meets that test.

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