Employers have seen a significant increase in reverse race and gender discrimination claims over the last four years. White and male employees are arguing that employer efforts to address historic race and gender inequities constitute “reverse discrimination.” The latest trend in reverse race and gender discrimination claims is challenges to pay equity efforts. Employers would be wise to consider these potential claims when addressing compensation decisions and assessing pay equity issues.
Employers have seen reverse race and gender discrimination claims increase throughout the last four years. However, this increase was accelerated after the Supreme Court’s decision in the Students for Fair Admissions v. Harvard decision striking down affirmative action programs in the education context. Although the Supreme Court’s decision in SFFA addressed affirmative action in the education context, conservative groups immediately sought to use the decision to attack affirmative action and diversity programs in the employment context. Employers have therefore seen an explosion of reverse race and gender discrimination claims of nearly every type over the last 18 months. One of those types is pay equity. Male and white employees are arguing that they are being paid less than minority or female employees. Some plaintiffs argue that their lower compensation rates are tied to employer Diversity, Equity and Inclusion efforts, while others contend that employer efforts to increase the pay of women and minorities constitute reverse race discrimination. We anticipate a continued increase of these claims over the next four years as the Trump Administration works to reorient the EEOC to bring claims on behalf of white males.
In light of these new developments, and given the likely focus of the Trump Administration EEOC, employers are advised to avoid potential reverse race discrimination pay claims. Employers should take several precautions to minimize the risk of reverse race and gender discrimination compensation claims. First, employers should review statistically significant pay disparities that benefit women and minorities, as well as statistically significant pay disparities that benefit men and white employees. Employers have often considered only pay disparities that harm minorities and women; in the 2024 environment, it is important to consider pay disparities in the other direction as well. Second, employers should avoid raising female and minority compensation beyond the amount necessary to address any pay disparities. In other words, employers should not create a new pay disparity that benefits women and minorities in remediating a pay disparity in the other direction. Third, employers should be very clear in all communications about compensation that the employer prohibits discrimination based upon race or gender in any direction, and for the benefit of any gender or racial group.
Employers are likely to see additional claims for reverse race and gender discrimination over the next four years, including in the area of compensation. These steps can help minimize employer exposure to reverse race and gender discrimination compensation claims.
