Over the past several years, EmployNews has cautioned employers pursuing diversity initiatives about a rising number of reverse discrimination claims by persons alleging that they were not hired due to preferences shown to a less qualified minority applicant.  Last month, in Reilly v. TXU Corp., an unpublished Fifth Circuit Court of Appeals decision, that court allowed a reverse discrimination claim to go to trial based upon statements and evidence made by the employer in conjunction with its diversity initiative.

The plaintiff was a white male TXU employee passed over for a promotion in favor of a black female applicant.  He sued for race discrimination, claiming that he scored higher than the successful applicant in the company’s internal rating system.  In his complaint, the plaintiff produced statements by a member of the rating panel claiming that TXU had a diversity problem, and in order to meet its diversity goals, needed to hire persons other than white males.

While not direct evidence of discrimination, the Fifth Circuit found adequate circumstantial evidence of race discrimination to allow the matter to go to a jury for trial.  The court reversed summary judgment for TXU.  The panel member’s statements, when combined with the company’s published diversity goals provided adequate evidence of possible discrimination.

Employers that implement diversity initiatives must understand that diversity goals in no way protect the employer from reverse discrimination suits by applicants passed over for jobs.  The employer must select the most qualified person for the job, regardless of race or gender, and regardless of diversity goals.  The intent of a legally effective diversity program should be to increase the number of qualified women and minorities applying for these positions.  By increasing non-traditional applicants, the employer increases the chances that the best qualified persons for these jobs will include women or minority candidates.