March 26, 2025
Diversity Policy Lands Employer in Hot Water – and Court!
On March 26th a U.S. District Court judge denied an employer’s motion to dismiss a lawsuit. The suit was filed by a former employee claiming the employer’s diversity policy and related practices discriminated against him based on sex and race.
In part, the suit alleges that just three months before he was fired, he was placed on a performance improvement plan (PIP) with “no prior complaints, warnings, or any other notice that he was not meeting expectations.” In addition, in his last four years of employment with the company, on a scale of 1-10, he never received a performance review score below nine (9).
The employee alleged the employer engaged in “sex and race balancing in its employment practices…provid[ing] financial incentives for its management to increase diversity in [the employer’s] workforce.” Because of these policies and practices, the employee claimed his supervisors stood to gain financially from terminating him.
What evidence? The CEO of the company reportedly stated at a town hall meeting that, “all executives in the company have to move forward by 1% on both underrepresented minorities . . . and gender” and that doing so “leads to a plus on [their] bonus.” The employee also alleged that he was treated differently from similarly situated employees who were people of color and/or women.
Lessons learned. Once again, diversity and equity programs may be fine. But they become unlawful when they suggest, require, or result in unlawful employment actions. When numerical goals are attached to decisions based on hiring, firing, promotion, etc. that is where employer’s get tripped up. We have seen it time and time and time again.
Interesting note. This court applied the standard that since the plaintiff was a white male he must “demonstrate background circumstances supporting the suspicion that the defendant is that unusual employer who discriminates against the majority.” Stay tuned as the U.S. Supreme Court is schedule to rule on whether holding “majority” plaintiffs (white males, Christians, etc.) should be held to a higher evidentiary standard than “minority” plaintiffs.
