The Unexpected Race Discrimination Victim
The unexpected victim in OFCCP and EEOC race cases is a white, or as OFCCP likes to call it, a non-minority, victim. The historical reasons for this are well known. The civil rights laws were developed to counteract the societal bias that favors white applicants and/or employees. However, the fact that such cases are rare does not mean they are non-existent. The civil rights laws prohibit discrimination on the basis of race, including the white race. Both the disparate treatment and the disparate impact theories apply regardless of race and gender. This article will discuss how these theories apply in the case of the unexpected victim and the circumstances likely to give rise to such claims.

Disparate Treatment

In the context of race, disparate treatment means that you are treated differently, usually less favorably, because you belong to a particular racial group. Title VII does not distinguish between racial groups in terms of its prohibition of discrimination. It prohibits discrimination on the basis of race, any race. Over the years, courts struggled with the question of whether disparate treatment theory should be applied to white complainants in the same manner as it applied to minority complainants given the stark differences in how these categories of people have been traditionally treated in American society. The seminal case of McDonnell Douglas v. Green, which set out an order of proof to be used in disparate treatment cases, established its proof pattern making reference only to minorities as potential claimants. In McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the court held that:
  • The complainant in a Title VII trial must carry the initial burden under the statute of establishing a prima facie case of racial discrimination. This may be done by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications.
Because the first element of the proof "that he belongs to a racial minority" cannot be met if the plaintiff is a member of the white majority, courts struggled to find a substitute for the first prong of the McDonnell Douglas prima facie case that would be applicable when a white person was the plaintiff.

In Harding v. Gray, 9 F.3d 150 (1993), the U.S. Court of Appeals for the D.C. Circuit concluded that the purpose of this first prong was to supply a circumstance that gives rise to an inference of discrimination:
  • But the general idea is always the same: "The plaintiff must prove by a preponderance of the evidence that she applied for an available position for which she was qualified, but was rejected under circumstances which give rise to an inference of discrimination." Burdine, 450 U.S. at 253, 101 S.Ct. at 1094 (emphasis added).
According to the Court in Harding for the unexpected victim to raise an inference of discrimination, he or she must meet a different standard.
  • No such inference arises when, as in this case, the plaintiff is a white man. Invidious racial discrimination against whites is relatively uncommon in our society, and so there is nothing inherently suspicious in an employer's decision to promote a qualified minority applicant instead of a qualified white applicant. Thus, in order to establish a prima facie case under Title VII, this Court requires a white plaintiff to show additional "background circumstances [that] support the suspicion that the defendant is that unusual employer who discriminates against the majority." Parker v. Baltimore & Ohio R.R., 652 F.2d 1012, 1017 (D.C.Cir.1981).
The court goes on to explain why it does not view this substitute standard as disadvantaging or discriminating against the white claimant.
  • This requirement is not designed to disadvantage the white plaintiff, who is entitled to the same Title VII protection as a minority plaintiff. McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273, 278-80, 96 S.Ct. 2574, 2578-79, 49 L.Ed.2d 493 (1976). Instead, the background circumstances requirement merely substitutes for the minority plaintiff's burden to show that he is a member of a racial minority; both are criteria for determining when the employer's conduct raises an "inference of discrimination." See Bishopp v. District of Columbia, 788 F.2d 781, 786 (D.C.Cir.1986).
However, the 3rd Circuit rejected this standard because it determined that it applied a higher standard of proof to members of the majority than to members of minority groups.

In Iadimarco v. Runyon 190 F.3d 151 (3d Cir. September 8, 1999), the court held:
  • Accordingly, rather than require “background circumstances” about the uniqueness of the defendant employer, a plaintiff who brings a “reverse discrimination” suit under Title VII should be able to establish a prima facie case in the absence of direct evidence of discrimination by presenting sufficient evidence to allow a reasonable fact finder to conclude (given the totality of the circumstances) that the defendant treated plaintiff “less favorably than others because of [his] race, color, religion, sex, or national origin.”
The EEOC has adopted a similar standard:
  • Discrimination based on race (White) is also actionable under Title VII, i.e., Title VII prohibits race discrimination against all persons, including Caucasians. This type of claim has often been referred to as “reverse discrimination.” Complainants/plaintiffs may prove a claim of discrimination through direct or circumstantial evidence. Some courts, however, take the position that if a White person relies on circumstantial evidence to establish a reverse discrimination claim, s/he must meet a heightened standard of proof. The Commission, in contrast, applies the same standard of proof to all race discrimination claims, regardless of the alleged victim’s race or the type of evidence used. In either case, the ultimate burden of persuasion remains always on the person alleging a violation of Title VII. [References deleted]

    The Digest of Equal Employment Opportunity Law Volume XX, No. 3 Office of Federal Operations Summer 2009 (
I could not find an articulation of the OFCCP standard in such cases on its website. For OFCCP, the first prong would usually not be whether the complainant was a member of a minority group, since OFCCP usually refers individual race based complaints to the EEOC, but whether the statistically significant disparity disfavored a minority group. From there the question becomes whether statistics disfavoring minorities automatically create an inference of discrimination while statistics disfavoring whites require an additional showing of "background circumstances." Presumably, since the EEOC, the lead civil rights agency for employment, has articulated its agreement that the prima facie case should be the same regardless of race, OFCCP is obligated to conform to the EEOC standard. At least at the administrative level, it appears that the first prong of the McDonnell Douglas prima facie case has been rendered essentially superfluous.

At both the EEOC (where I served until 1998) and OFCCP (where I served until 2011), I always operated under the assumption that the "background circumstances" standard applied since that is the standard I had been taught. The "background circumstances" standard is based on the history of discrimination against African Americans. It focuses on the fact that the civil rights movement arose in response to a history of slavery, segregation and extensive societal prejudice targeting African Americans at the hands of a white majority. The court felt comfortable with the assumption that barring any other obvious non-discriminatory reason for an adverse employment action targeting African Americans, given our national history, membership in a racial minority was a sufficient foundation for the inference of discrimination in the prima facie case. The court was not comfortable making this assumption when the plaintiff or complainant was white because the history of race relations in America accorded privileges on the basis of being a member of the white race. From the court's perspective, to apply the same standard for the prima facie case alleging discrimination on the basis of being white was to ignore the historical realities of race relations in America. Since discrimination on the basis of being white was so unusual, the court felt that no suggestion of discrimination was inherent in a white person being passed over for an employment opportunity. Cases of discrimination on the basis of being white are still very rare at both the EEOC and the OFCCP.

On the other hand, the argument in favor of a single standard for the prima facie case is grounded in the principle that race based distinctions, in general, are discriminatory. The "background circumstances" requirement applies a different and higher standard to white complainants than to African American (and other minority) complainants. It is a race based distinction and therefore, discriminatory. Thus, the same standards should apply to minorities and non-minorities for establishing the prima facie case.

In a way, the two different standards are a microcosm of the ongoing conflict over affirmative action in general. Like the arguments for the "background circumstances" standard, the arguments in favor of affirmative action are also grounded in the historical disadvantages experienced by African Americans and other minorities. One logical extension of this argument is the conclusion that until all remnants of that history are eradicated, race based corrective measures such as affirmative action continue to be necessary and legitimate. The argument against affirmative action is similar to the argument for a single prima facie case standard. Affirmative action is race based. If race based distinctions are themselves discriminatory, affirmative action is discriminatory.

Many people and organizations attempt to justify some race based distinctions while rejecting others. For example, to the extent the EEOC and OFCCP reject the "background circumstances" standard, they are rejecting one race based distinction while at the same time embracing affirmative action which is also a race based distinction.

I understand this dilemma. As a beneficiary of affirmative action for whom doors were opened that may not have otherwise been opened, it is difficult not to support a practice that made such a positive difference in my life. Nevertheless, I can understand how a white person who feels the place I occupied should have been theirs would feel on solid moral ground to oppose race based distinctions altogether. My rejoinder to that would be that the white person benefits from a host of positive race based distinctions that are not available to me and that they are not necessarily conscious of nor responsible for. Their response back may focus on the fact that they did not put those privileges in place. To which I would respond that I did not put affirmative action in place, I just benefitted from the fact that it was there.

Both proponents and opponents of affirmative action are a part of the history and culture that has led us to this uncomfortable place of trying to undo that history on the one hand and trying to chart a new course that is not in any way race based. The problem is complicated because neither side sees any end in sight. For many, some form of affirmative action will always be needed, at least for the lifetime of all who are now alive; for opponents of affirmative action, since there is no end in sight, the only solution is to stop making race based distinctions if we want to stop having race based distinctions. Despite the heat that surrounds this debate, many are caught in the middle (wanting to establish parameters within which some race based distinctions are permissible while prohibiting other race based distinctions) and thus, understand, at some level, why others oppose overtly race based distinctions altogether.

Disparate Impact

Disparate impact occurs when a facially neutral criterion has a disproportionately adverse impact on a protected group. Again, it is very rare for OFCCP to find a facially neutral criterion that disproportionately screens out white applicants or employees. However, in Ricci v. DeStefano, 129 S. Ct. 2658 (2009), the Supreme Court held that the City of New Haven, in trying to avoid a possible disparate impact claim by African American candidates, engaged in disparate treatment of white and Hispanic candidates. The court basically held that where the motive for a particular employment decision is to avoid possible disparate impact liability, the decision is by definition race-based and must meet the following standard in order to pass muster under Title VII:
  • We conclude that race-based action like the City’s in this case is impermissible under Title VII unless the employer can demonstrate a strong basis in evidence that, had it not taken the action, it would have been liable under the disparate-impact statute.
In effect, you have to make a compelling disparate impact argument against your own facially neutral standard before the prospect of a disparate impact complaint by minority employees can lawfully be used as a rationale for proactively engaging in corrective action such as disregarding the outcome of a test.

Lessons Learned

The Ricci decision did not lead to changes in how the OFCCP handles discrimination cases involving white affected classes. OFCCP encounters very few situations where this issue arises. However, for contractors, Ricci does raise some legitimate concerns. One major lesson from Ricci is that in an effort to be proactive or even compliant with affirmative action and non-discrimination requirements, you must be mindful of the potential effect on other racial groups in the workforce including white applicants and employees.

For example, many contractors may require that all slates of candidates for certain positions be diverse slates. How you go about making sure that the slate is diverse can make a difference between a lawful and prudent selection system and one that discriminates against majority candidates. For example, it may be lawful to have a policy of requesting a diverse slate of qualified candidates for a position. However, to take a qualified non-minority candidate off the slate in order to diversify the slate by putting a minority candidate on, would likely be a prohibited race-based decision.

As another example, including diversity, affirmative action and EEO criteria in performance standards can be done lawfully. However, if you give a manager a lower performance rating because he made a non-discriminatory selection of a qualified non-minority candidate to be in charge of diversity and you think that makes a mockery of the diversity effort to have it headed by a white person, you are making an illegal race based decision concerning his performance. If you remove the selectee from the diversity position because of his race, you would be making another race based decision. Either action can land you in hot water with the OFCCP or the EEOC.

As part of affirmative action, OFCCP requires contractors to engage in affirmative action to correct underutilization of minorities in its job groups. If in attempting to comply with this effort, you ignore the relative qualifications of the applicants because you need to hire a particular race to make your numbers work, you would be making a purely race-based decision. Affirmative action requirements do not compel you to ignore significant differences in qualifications between minority and non-minority applicants.

One further caveat is to be careful what you say about the selection process. Sometimes because the action will favor minorities, selection officials are not particularly sensitized to how their words can get the contractor into trouble with OFCCP. For example, if you go around telling people that the next management hire has to be African American, you are setting yourself up for a future allegation of racial discrimination either by passed over white candidates or, for that matter, any non-African American who feels they should have been selected for the position. Careless speech like this can become important evidence in future enforcement actions.


OFCCP enforcement does not often involve allegations or statistical evidence of discrimination against white victims or white affected classes. However, you should be sensitive to the fact that the non-discrimination requirements of the laws enforced by OFCCP apply equally to white affected classes and individuals. You should treat such allegations that come to your attention internally the same as you treat allegations of discrimination by any other race. Failure to do so would itself be disparate treatment. Review your affirmative action and compliance efforts to ensure that discrimination on the basis of majority status will not be a by product of your compliance efforts. Avoid discriminatory statements as well as discriminatory actions not only in the context of discrimination against racial minorities but with respect to all of your applicants or employees.