Oct 22, 2014

By Eric B. Meyer

Let’s get one thing clear. Anyone can be a victim of discrimination. And when it comes to race, we’re talking black, white, brown, whatever.

And in this instance, it added up to a $620,000 jury verdict and nearly $165,000 in attorney’s fees.

Case in point, in Boneberger v. St. Louis Metropolitan Police Department, Mr. Boneberger, who is white, claimed reverse-race discrimination because his employer failed to transfer him to the position of Assistant Director of the St. Louis Police Academy.

Supervisor wanted to “bring color down to the Academy”

At trial, Boneberger testified that Academy Director informed him that he shouldn’t bother applying for the job because it was going to a black female. After Boneberger’s employer selected a black female for the position, Boneberger’s supervisor told him that the selection was to “bring color down to the Academy.”

The jury also heard facts indicating that Boneberger had more relevant experience and seniority than the black female selected for the position.

Boom! The jury finds in favor of Boneberger and, in doing so, also awarded punitive damages.

Direct evidence of reverse-race discrimination

In seeking a new trial, the employer argued that Mr. Boneberger was required to present something more than evidence that he was discriminated against because of his race; namely, “that background circumstances support the suspicion that the defendant is that unusual employer who discriminates against the majority.”

Now, if I could paraphrase the Court’s response to that argument, it would be something like, “Well, for f*ck’s sake!” In reality, however, it went like this:

In this case, plaintiff presented direct evidence of discrimination, specifically, testimony indicating that the decision-makers had determined, in advance, that a white male would not be hired for the position. This evidence shows “a specific link between the alleged discriminatory animus and the challenged decision, sufficient to support a finding by a reasonable fact finder that an illegitimate criterion actually motivated” the decision. … In most cases, like in this one, the direct evidence is evidence that the defendant is just such an “unusual employer.”

Employment decisions should be “protected-class” blind

As we’ve discussed many times, most recently here, commenting about race, religion, age, color, national origin, etc., in the workplace is dumb.

Instead, when it comes to hiring/promotion/firing decisions, employers who base them on — oh, what’s the word? — qualifications, generally fare best.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

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