What are the Elements of a Reverse Discrimination Claim?

On August 17, 2021, the 7th Circuit affirmed an order of summary judgment for an employer in a reverse race discrimination lawsuit, in which the plaintiff claimed that he fired because he is white. Bless v. Cook County Sheriff’s Office, et al., No. 20-2733 (7th Cir. Aug. 17, 2021). The plaintiff, a Cook County Illinois Sheriff’s police officer, was fired in connection with an internal review board determination that he had committed misconduct. The plaintiff sued the County, alleging reverse race discrimination and political retaliation against him as a white Republican. The protections of Title VII are not limited to members of historically discriminated-against groups.

However, the 7th Circuit has modified the traditional McDonnell-Douglas burden-shifting framework in the context of reverse discrimination claims, to require evidence of “background circumstances” supporting a race-discrimination claim brought by a white plaintiff. To establish a prima facie case of reverse discrimination, a plaintiff must demonstrate that: (1) background circumstances exist to raise an inference that the employer has reason or inclination to discriminate invidiously against whites, or evidence that there is something “fishy” about the facts at hand; (2) she was meeting her employer’s legitimate performance expectations; (3) she suffered an adverse employment action; and (4) she was treated less favorably than similarly situated individuals who are not members of her protected class. The 7th Circuit explained that the first prong may be satisfied by evidence that: (1) members of one race were fired and replaced by members of another race; (2) employers are under pressure from affirmative action plans, customers, public opinion, the EEOC, a judicial decree, or corporate superiors imbued with a belief in “diversity;” or (3) a gross disparity in qualifications.

The 7th Circuit concluded that the plaintiff failed to present evidence from which a jury could find “background circumstances” creating an inference that the employer has reason or inclination to discriminate invidiously against whites, or evidence that there is something “fishy” about the facts at hand. Consequently, he failed to establish a prima facie case of reverse race discrimination. Moreover, even he established a prima facie case, his claim would still fail because he did not present evidence that the employer’s proffered nonracial reasons for his termination were pretextual. Ultimately, there was no evidence from which a jury could conclude that race was a factor in the termination decision.