Dora Vivaz, Senior Attorney, National Legal Research Group
The procedural requirements and burdens for showing race discrimination in employment are by now fairly well delineated and established. This is apparently not yet so for claims of reverse discrimination. In a recent case, the U.S. District Court for the Western District of Virginia, faced with such a claim, first noted that there is a split amongst the circuits as to whether the same requirements and burdens apply to reverse discrimination claims as apply to discrimination claims. Shomo v. Apple, Inc., Civ. Act. No.: 7:14cv00040, 2015 WL 777620, at *4 n.3 (W.D. Va. Feb. 24, 2015). The court referenced McNaught v. Virginia Community College System, 933 F. Supp. 2d 804, 817-20 (E.D. Va. 2013), which includes a detailed discussion of the subject and outlines the circuit split on the issue.
In McNaught, the court reviewed the decisions by the circuit courts. It noted that the Sixth, Seventh, Eighth, Tenth, and District of Columbia Circuits all require an enhanced showing by a reverse discrimination plaintiff—a showing of background circumstances that tend to demonstrate that the employer has either reason or inclination to unlawfully discriminate against a "majority" applicant or employee. The court explained that the rationale for the enhanced requirement is that the usual proof scheme developed under Title VII was developed by the courts based upon this country's history of race discrimination against minorities, particularly African-Americans.
The court then noted that the Third, Fifth, and Eleventh Circuits have held that the same standard applies to all discrimination claims. The court explained that the rationale for employing the same standard is essentially the constitutional requirement for equal protection. Finally, the court noted that the Fourth Circuit has repeatedly refused to decide the issue, with the result that there is an intracircuit split amongst the district courts of the Fourth Circuit. After reviewing the cases, the court sided with those courts that have applied the same standard, concluding that the enhanced requirement is vague and hard to apply and that a uniform standard better reflects the approach of the Supreme Court.
The Shomo court likewise concluded that it would apply the same standard to all discrimination claims. In Shomo, there was simply no evidence to support a reasonable inference of unlawful reverse discrimination under either standard, so the issue was unimportant to the decision in that case. Inevitably, however, this issue will have to be decided by the Supreme Court.
