Case Western Reserve University School of Law
The idea that Whites, in particular white males, are the new victims of discrimination is steadily gaining acceptance among white Americans. While only 16 percent of white individuals claim to know someone who has been the victim of reverse discrimination, more than 70 percent of Whites are convinced that reverse discrimination is a rampant problem. Additionally, although reverse discrimination cases generally constitute a small percentage of filed discrimination cases, usually about 1 to 3 percent, that number is beginning to grow. In particular, the percentage of reverse discrimination claims brought by federal workers, the very workers for whom affirmative action has been the most successful, has increased significantly. For example, the number of reverse discrimination charges brought by white federal employees has almost doubled, rising from just 10 percent of the Equal Employment Opportunity Commission's ("EEOC") caseload in 1991 to 17 .1 percent in 1996. As more Whites bring reverse discrimination cases, federal courts are increasingly confronted with the question of how to evaluate these cases under current discrimination law. The current framework for evaluating discrimination claims was set forth by the Supreme Court in McDonnell Douglas Corp. v. Green. Under the McDonnell Douglas framework, a plaintiff establishes a prima facie case of race discrimination in employment by proving the following four factors: (1) that he belongs to a minority group; (2) that he applied for and was qualified for the position at issue; (3) that despite his qualifications, he was rejected; and (4) that after his rejection, the position remained open and the employer continued to seek applications from persons of his qualifications. If the plaintiff establishes these factors, the court draws an inference of discrimination. The burden then shifts to the employer, who must provide a legitimate explanation for rejecting the plaintiff's application. If the employer satisfies this burden, the plaintiff must show that the employer's reason is a pretext for discrimination to win his case.
When Different Means the Same: Applying a Different Standard of Proof to White Plaintiffs Under the McDonnell Douglas Prima Facie Case Test,
Case Western Reserve Law Review
Available at: https://scholarship.law.bu.edu/faculty_scholarship/326