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In #MeToo era, some lawyers fielding more ‘reverse discrimination’ queries

Hiring EmployeesWith today’s increased focus on diversity and inclusiveness in the workplace, some employment attorneys are reporting that employees are raising more concerns about so-called “reverse discrimination.”

“People are generally more aware now that they may have legal rights in employment, and because of that heightened awareness, they are looking at an adverse employment action and wondering if they have a potential claim,” said Boston employee-side lawyer Nancy S. Shilepsky. “Reaching out to a lawyer to find out makes good sense.”

Employer-side attorneys are also aware of the recent shift.

“What I have seen, at least anecdotally, is an uptick in employees who do not fall within the ‘classic’ protected-class designations such as employees who are male and white internally going to HR and complaining of discrimination,” said Providence attorney Alicia J. Samolis.

Furthermore, Samolis said she is seeing more lawyers’ letters cross her desk, which she described as a potential indication that “those employees who are complaining are more likely to go out and find an attorney willing to take on such an unconventional discrimination case.”

To some degree, the increase may be a response to the #MeToo movement, attorneys say, but it is also a result of members of historically advantaged groups feeling “disadvantaged” when companies roll out new policies meant to level the playing field for all employees.

Increased awareness

Certainly the #MeToo movement has raised awareness of the need for gender equality in the workplace, Shilepsky said.

“But for a lot of companies, the concern about inclusiveness and level playing fields has been part of their cultures for a while,” she noted. “Sometimes they get it right and sometimes they don’t, but there are legal ways to promote fairness and opportunity for all. Making room for one group by pushing out another is not legal.”

Employer-side attorney Lisa S. Burton, who practices in Boston, is also seeing more instances of complaints in the #MeToo context, sometimes from men who believe that they did not receive a thorough or fair process before being disciplined or discharged.

“That is where we are seeing more claims: ‘Employers are not giving me a fair shake,’” she said.

According to Burton, the questions then become whether the action was a “knee-jerk reaction” to credit a woman’s account more than a man’s, and whether a situation was sufficiently investigated or whether it was just easier to “fire the white guy.”

Another factor that an employee may be considering, she said, is the fact that as part of their due diligence in hiring, companies ask job candidates if they have ever been accused of inappropriate conduct in the workplace.

“It will trail you, and people will be asking about it,” Burton said.

Samolis said that while the uptick is likely partially attributable to #MeToo, it also emanates from a general desire to improve the bad parts of the work environment. But she added that when an employer changes policies or past practices, some people will perceive it as unfair.

“There are people who feel like they can say, ‘We should hire a woman’ while speaking to a roomful of potential male plaintiffs. But it’s illegal to hire a woman based simply on her gender.”

— Alicia J. Samolis, Providence

An employee’s perceptions of discrimination and success in a lawsuit can also depend on what the company’s demographics look like, Samolis said. For example, in a case of the only male employee of a company being terminated, there is a greater risk of gender discrimination being raised than if one of many female employees had been terminated.

And while a company may want to create a more diverse workforce or may feel pressure from the marketplace to do so, an employee’s “reverse discrimination” complaint can be spurred by the company’s incorrect assumption that it can favor traditionally oppressed minorities, Samolis said.

“There are people who feel like they can say, ‘We should hire a woman’ while speaking to a roomful of potential male plaintiffs,” she explained. “But it’s illegal to hire a woman based simply on her gender, and a company’s focus should be on getting a good pool of applicants and eliminating barriers diverse candidates may face when seeking to be hired or promoted.”

Shilepsky suggested that the number of employers trying to address such issues constructively has increased, at least in Massachusetts.

“These issues are being discussed more openly, although sometimes in ways that don’t conform to the law,” she said. “‘We need more women’ may be misunderstood to mean that it’s OK to discriminate in favor of women, but that is against the law.”

‘Feeling disadvantaged’

But increased awareness does not necessarily translate into meritorious claims.

“When someone comes to me and says, ‘My employer favored my fill-in-the-blank colleague over me,’ I explain that that is just the beginning of the analysis,” Shilepsky said.

There is a difference between illegal discrimination and “feeling disadvantaged,” she explained. For example, if white men traditionally received “advantages” in a workplace, their employers’ efforts to create a level playing field for all workers may leave those who expected to benefit from “who you know” employment practices feeling disadvantaged.

“But the leveling of the playing field is not unlawful discrimination,” Shilepsky said.

The notion of giving people equal opportunities and making merit-based employment decisions is what it is supposed to be about not switching around who gets treated unfairly, she added.

Burton said that because there are usually no witnesses to alleged discriminatory treatment in the workplace, employers often “bend over backwards” to show they are properly investigating allegations.

“And once an employer says ‘zero tolerance,’ you have to question whether every alleged violation is worthy of termination,” she said.

Shilepsky said a safe strategy for new employees is to “eat the meal you’re served,” at least until that person has earned a seat at the table. If someone comes in and doesn’t understand the company culture, he may run into headwinds.

For example, she said, organizations may be sticklers for the chain of command and apply that principle across the board.

“As courts have said, ‘bad management, unkind management and even unfair management is not necessarily illegal management,’” Shilepsky said. “Of course, if the rules are not uniformly applied, that’s a different story.”

Employer strategies

The current workplace environment begs the question of what an employer can do to lessen its risk of “reverse discrimination” allegations.

“It’s a cultural shift, but we are trying to get managers to foster discussions among their employees,” Burton said. “If someone is upset in the moment, address it head on and have a positive conversation.”

For larger employers, she recommends a type of “ombudsman process” and the implementation of employee resources such as open-door policies and hotlines.

“But you have to offer actual training, with workshops on topics like how to have difficult discussions with your boss and how to diffuse situations that may arise in the workplace,” Burton said.

Samolis said there are two themes that employers would be wise to focus on.

First, they should be careful when crafting Equal Employment Opportunity/diversity policies.

“If it’s an initiative where the company is doing something other than having a standard EEO policy, they should definitely call their lawyer,” Samolis said. “Companies don’t understand that they may not be subject to the same laws as another company.”

To illustrate, she pointed out that federal contractors are required to follow affirmative action laws and to ask about race when hiring for that purpose, while certain other types of employers are prohibited from doing that. Thus, it is important not to simply copy the policies of another company.

Second, Samolis stressed that companies need to have good business reasons backing up their hiring, firing and promoting decisions. Although Massachusetts and Rhode Island are “at will” states where an employer may terminate an employee at any time and for any reason, the termination cannot be for a discriminatory reason.

“In that sense, every person is in a protected class. And most of the time in discrimination cases the employer will have the burden of proof to articulate a non-discriminatory reason for their actions. I always tell employers it’s a red flag if decisions are being made with no legitimate reason,” she said.

Subjective factors used to justify employment decisions, such as personality or “fit,” are hard to articulate and may not make sense to a judge, a commission or a jury, Samolis continued. The test is whether an objective person can understand the business reason why the decision was made if it were to be written out.

“That is really the key,” Samolis said. “That is also good business advice, as it results in the employer obtaining and retaining the most qualified people.”

Finally, Samolis said that companies should also be particularly careful that managers do not create emails, interview notes, or the like that could contain direct evidence of discrimination, something that is not often seen in the “classic” employment discrimination cases.

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