Reverse discrimination

Reverse discrimination in the workplace

When members of a particular group have been barred from a particular employment, it is said that this group has received less than its fair share of employment, in question, and deserves to receive more by way of compensation. Thus, this group is being compensated for past lack of employment. Therefore, a group already existing in the workplace will be discriminated against, even if they’ve never been denied employment previously. If the point of reverse discrimination is to compensate a wronged group, it will hardly matter if those who are preferentially hired were not among the original victims of discrimination. Moreover, the current beneficiaries of reverse discrimination are not often the same persons as those who were harmed by the original discrimination, and those who now bear the burden of reverse discrimination are seldom the same persons as those who practiced the original discrimination. Because of this, reverse discrimination is said to be both irrelevant to the aim of compensating for past injustices and unfair to those whose superior qualifications are bypassed.

It is often argued by majority groups that they are being discriminated for hiring and advancement because of affirmative action policies. However, critics of this argument often cite the "symbolic" significance of a job has to be taken into consideration as well as qualifications. Many feel that basing a decision to discriminate against a group of people should not be based on symbolism but on objective, verifiable fact. Thomas Sowell said that the meaning of "qualified" has been stretched to mean "qualified to be trained," and the "available" supply includes women who no longer work (usually because of their husbands' prosperity). Critics also argue that what is termed "reverse discrimination" against majority groups is, in fact, not discrimination against that group but rather positive discrimination assisting another group. In other words, rather than the employer assuming a trait or negatively discriminating against the majority, it is instead positively assisting a minority group. However, many point out that positive discrimination towards one group has the same effect as negative discrimination towards another. If positive discrimination occurred towards white people in the workplace, it would be considered negative discrimination towards people of colour. As such, affirmative action for people of colour is the same as discrimination towards white people.

European Union

In European Union law, reverse discrimination occurs where a Member State’s national law provides for worse treatment of its own citizens or domestic products than other EU citizens/goods under EU law. This can happen because of the legal principle of subsidiarity that EU law is not applicable in situations purely internal to one Member State.

India

In India, among the limited positions for higher education in Government institutions, 50 percent seats are reserved for members of economically disadvantaged castes and classes. Reserved category candidates can select a position from the Open 50 percent if he or she has good merit. This results in further reverse discrimination of Open/General/Non Reserved candidates. Further, since there are no economic criteria in classifying Reservation, poorer sections of reserved class often remain poor whereas the affluent section reap benefits for successive generations. Also, the poorer sections of Open/General Category become devoid of access to higher education for even slightly low merit on competitive exams. The difference in merit on entrance exams is often very wide between the reserved and unreserved classes. In India, the term is often used by citizens protesting against reservation and quotas.

United Kingdom

UK law draws a distinction between Equality of Provision and Equality of Outcome, particularly in respect to disability rights. The Disability Discrimination Act 1995 and the Equality Act 2010 make it clear that treating two people identically may not be sufficient to guarantee that they have been treated equally in law if the task, physical environment or service does not offer them equality of outcome. The law provides for disabled people to request the provision of 'reasonable adjustments' to ensure that they are able to access employment, services and the built environment with the same potential as non-disabled people. In November 2007, David Rosin, a former vice-president of the Royal College of Surgeons wrote in the magazine Hospital Doctor: “It is time that someone spoke up concerning the reverse discrimination with respect to merit awards” and saying that "female and ethnic minority consultants are being given preferential treatment to meet artificial quotas".

United States

The number of reverse discrimination cases filed with the Equal Employment Opportunity Commission doubled in the 1990s and continue to reflect a growing percentage of all discrimination cases.

In a study conducted by S. K. Camara & M. P. Orbe, they collected narratives of individuals describing situations where they were discriminated against based on their majority-group status (cases of reverse discrimination). The population sample consisted of the respondents being 30% female and 70% male. Birth era of respondents were 3% in the pre civil rights era between 1900 and 1935, and 53% during civil rights era 1938-1969, and 44% in the post civil rights era between 1970 and 1985. Approximately 9% of the respondents were Hispanic, 3% African American, 77% Caucasian, 1% Asian, 1% Native American, and 9% identified themselves as other.

(Based on Table 1 of Sakile K. Camara & Mark P. Orbe)

Vast majority of these stories involved Whites describing discrimination based on their race = a value of 70. Men who were discriminated against based on their sex = a value of 19. Young people experience age-based discrimination = a value of 12., and heterosexuals experiencing discrimination based on their sexual orientation = a value of 4.

Colleges

In 1996, University of Texas had to defer the use of racial preferences in their college admissions after the US Court of Appeals for the Fifth Circuit barred the school from considering race in admitting students. The ruling determined that diversity in education could not justify making race-based distinctions. Hopwood v. Texas was a lawsuit brought by four white applications to the Texas Law School, who were denied admission even though their grade point averages were greater than minority applications that were accepted. The four white students also had a greater Law School Admission Test scores This decision predicated a movement of banning affirmative action, seen in California in 1997, Washington in 1998, and Florida in 1999.

However, in 2003, in Grutter v. Bollinger, the Supreme Court allowed the University of Michigan Law School to continue to consider race among other relevant diversity factors. The decision was the first and only legally challenged affirmative action policy to survive the courts. However, this ruling has rendered confusion among universities, and lower courts alike, regarding the status of affirmative action across the nation.

In 2012, Fisher v. University of Texas reached the Supreme Court. The University of Texas allegedly used race as a factor in denying Abigail Fisher's application, denying her a fair review. The lower courts upheld the program, but the Supreme Court vacated the judgment of the lower courts and sent the case back to the Fifth Circuit to review correctly. Colleges first started considering race in acceptance to correct discrimination, but in turn conflicted with the equal opportunity clause.

Opponents

According to a report prepared in 1995 for the Labor Department of the United States by Alfred W. Blumrosen, affirmative action policies have caused few claims of reverse discrimination by whites. The report found less than 100 reverse-discrimination cases among more than 3,000 discrimination opinions by Federal district and appeals courts from 1990 to 1994. The report indicated that a high proportion of the claims lacked merit. In Blumrosen's report, national surveys revealed only a few whites had experienced reverse discrimination, and only 5 to 12 percent of whites believed that their race had cost them a job or promotion. In addition, Blumrosen's report indicated that the reports filed with the Equal Employment Opportunity Commission offer additional evidence that reverse discrimination is rare: 2% of cases were of white men charging, sexual, racial or national origin discrimination and 1.8% were of white women charging racial discrimination.

Furthermore, newer reports by the Equal Employment Opportunity Commission have found that less than 10% of race-related complaints were filed by whites, only 18% of gender-related complaints and only 4% of the court cases were filed by men.

Analysis of other evidence shows that when national samples of whites are asked if they personally have experienced the loss of job, promotion, or college admission because of their race, 2%-13% say yes.