When we think of, for example, age, race and sex discrimination, we commonly think of discrimination against someone who is thought to be “too old”, or is black, or is a woman. But these protected classes are not limited and someone can still be discriminated against for being too young, white or a man. In those, less common, situations, we call it “reverse” discrimination.
The Age Discrimination in Employment Act (“ADEA”), the federal law prohibiting employment discrimination based upon age, does not have a “reverse” component to it. The ADEA only applies to individuals who are 40 and over. The New York State Human Rights Law (“NYHRL”), however, does protect age as a general matter. Under the state law, anyone 18 and over can be discriminated against on the basis of their age. So, under the NYHRL we do see reverse age cases.
Both Title VII of the Civil Rights Act of 1964 (the federal law) and the NYHRL protect employees from race discrimination. While we commonly think of race discrimination as being against African American employees, any race is protected. So, while certainly more rare, you do see cases where an employee has been discriminated against for being Caucasian. One of our cases involved a reverse race discrimination claim by Caucasian teachers who were terminated by a new principal, who was black, after being treated less favorably than black employees, excluded from meetings and ultimately fired and replaced by less qualified individuals.
After recent events like the march in Charlottesville, VA, some have asked whether white employees who are fired from their jobs for being members of white supremacist organizations are having their First Amendment rights violated or are being discriminated against because of their race. The answer is likely no – although every case depends on its particular set of facts – as Courts have typically dismissed these types of claims where participation in a hate group or rally is involved.
Title VII and the NYHRL also protect employees from sex discrimination. This is more common with respect to female employees, by far. However, men can be victims of sex discrimination as well, particularly in female-dominated fields. We recently handled a retaliation claim on behalf of a nurse who was treated less favorably than similarly situated female employees, complained to his employer and then was terminated for complaining. We also handled a claim on behalf of a sales representative who was the only man on a team of all women and was terminated despite having higher sales numbers. Also rare, but existing, are same sex harassment cases (not to be confused with sexual orientation harassment/discrimination cases) where a man is being harassed by another man because of his sex. You can read more about that here.
What is your legal recourse if you have been the victim of reverse discrimination?
If you are an employee of a private company with the requisite number of employees (for example at least 15 for Title VII coverage), recovery under federal law requires filing a charge with the Equal Employment Opportunity Commission (“EEOC”). Once the EEOC has completed its investigation, or 180 days have passed, an employee may elect to pursue their claim in federal court. Under the state NYHRL, an employee may bring a lawsuit in state court or may file a charge with the New York State Division of Human Rights. The law is currently in flux as to whether a public employee, prior to filing a lawsuit, would first need to serve a notice of claim on the employer (cases currently say no for cities and yes for counties, and uncertain for other municipalities). If an employee has both state and federal claims - which they often do – typically the state claims would be included in the federal lawsuit after the EEOC time period has passed. There are other specific procedures for federal employees.
If you feel you have been the victim of discrimination – or retaliation if you made a complaint of discrimination and then suffered an adverse employment action – it is important to contact an experienced employment attorney as soon as possible as there are strict deadlines in these types of cases.