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Have an Affirmative Action Plan? Protect Against Reverse-Bias Claims

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in Discrimination and Harassment,Firing,HR Management,Human Resources

In the HR world, your actions sometimes fall into the “damned if you do, damned if you don’t” category. This is one of those cases.

If your organization has settled a class-action case or agreed to voluntarily use affirmative action to remedy past discrimination, take note: That action makes you more vulnerable to reverse-discrimination lawsuits. In such cases, majority race employees (typically whites) claim they aren’t “favored” by your affirmative action plan.

The fact that you are actively trying to remedy past discrimination makes it more likely that you’re now favoring one race over another, according to a federal appeals court.

So, if you have an affirmative action plan, redouble your efforts to treat everyone exactly the same. Showing any favoritism can trigger a reverse-discrimination claim.

Recent case: Brian Mastro, a white male, worked as a supervisor for Potomac Electric Power, which had earlier devised an affirmative-action program to remedy past discrimination.

Mastro recommended an African-American employee be fired for lying after the worker called asking for emergency vacation time but didn’t reveal that he was in jail. The employee claims that he did tell Mastro he was in jail. The company ended up firing Mastro, the supervisor.

Mastro filed a reverse-discrimination lawsuit, claiming Potomac Electric bent over backward to protect its African-American employees. The court sent his case to trial. It said white employees can use affirmative action plans to prove reverse discrimination since a jury could believe a company under pressure to remedy past discrimination would “treat minority employees in a preferential manner.” (Mastro v. Potomac Electric Power, No. 05-7044, DC Cir., 2006)

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