|
|
|
"REVERSE" RACIAL DISCRIMINATION
John C. Bobber, Esquire and Jeffrey C. Sotland, Esquire
The recent case of Johnston v. School District of Philadelphia has brought reverse discrimination lawsuits back into the forefront of employment litigation in Pennsylvania. Johnston's verdict of $2.96 million, plus an attorney fee award of around $500,000, in favor of the four Caucasian male plaintiffs, was one of the largest "reverse" discrimination verdicts ever in the state. The jury found that the plaintiffs were racially discriminated against by their African-American supervisor, the School District's chief purchasing officer, Kimberly Sangster, when she terminated them without a legitimate reason after commenting that there were "too many white male managers" in their department. The jury found that the four plaintiffs were wrongfully terminated from the district's purchasing department in 2003, and that they were retaliated against after initially complaining of reverse race discrimination by being fired. Although one employee was rehired after he threatened a lawsuit, his office was moved to the basement, where there was standing sewer water.
Three of the plaintiffs were reinstated following the jury's verdict; a fourth had moved from the jurisdiction and was awarded front pay of $243,000 instead of reinstatement. However, most of the media's coverage of the case was diverted from the real issue and redirected to the school district's defense attorney, Carl E. Singley, and his conduct after the verdict was read. Singley, a partner at Blank Rome, LLP, admittedly called five of the case's Caucasian jurors "crackers" during a conversation with them in the elevator. Singley later apologized to the jurors after being called back into the courtroom by Judge Harvey Bartle, III.
Johnston typifies the Court's movement toward a more plaintiff-friendly standard in "reverse" discrimination cases. In 1999, the Third Circuit rejected the "background circumstances" test used as a way for Caucasian plaintiffs to make out a prima facie "reverse" discrimination case in other circuits, finding that the "background circumstances" test created a heightened burden for plaintiffs. The first prong of the McDonnell-Douglas burden-shifting test used in race discrimination cases, which requires that the plaintiff prove he or she is a racial minority, was abandoned by some Circuits in exchange for the "background circumstances" test, which uses evidentiary factors in evaluating whether the plaintiff offers sufficient evidence of less favorable treatment based on race. The Court instead adopted a flexible standard that merely requires that a plaintiff present "direct evidence of discrimination or indirect evidence sufficient to support a reasonable probability, that but for the plaintiff's status, the challenged employment decision would have favored the plaintiff." Iadimarco v. Runyon.
As opposed to the Parker/Harding "background circumstances" test employed by other Circuits, which has specific factors that are weighed in determining whether a plaintiff's employer was the kind of "unusual employer" who discriminated against a member of a majority class, the Third Circuit's standard does not require as much. The Iadimarco standard allows plaintiffs to establish a prima facie case in the absence of direct evidence of discrimination by presenting sufficient evidence of less favorable treatment by the employer. Therefore, a plaintiff now has an easier burden in proving a prima facie "reverse" discrimination case in the Third Circuit. Iadimarco was upheld this month, when the Court of Appeals decided Haley v. City of Plainfield (granting defendant summary judgment on reverse discrimination claim brought by a Caucasian police officer who was not promoted, but upholding the Iamarco standard in deciding the case).
Because of the decreased burden, Iamarco can only lead to an increase in reverse discrimination lawsuits brought against employers in the Third Circuit. Additionally, it can only lead to increased costs for employers, since the reduced burden of proof for plaintiffs will allow cases to progress further in the litigation process, causing employers to spend more on attorneys' fees in order to resolve a case. Employers need to be keenly aware that reverse discrimination cases are real, and could be costly. Because reverse discrimination cases are fee shifting, like other discrimination cases, even if a jury finds in favor of a plaintiff for $1.00, the defendant can be responsible for all of the plaintiff's attorney fees. Employers need to take affirmative steps with training, revised employee manuals, etc. to avoid actions that could result in reverse discrimination law suits; it could be a risk they cannot afford to take.
|
|
