Recently, a Caucasian male walked into our office who had been fired from his job. He told us the story of how he was a colleague of another employee, who was a minority. He said that both of them had been involved in an audit with the company, and both were not using the correct calculations in a test comparison. The company was going to impose a one day suspension for both men, but when the minority employee complained of racism, they decided not to discipline the minority and terminate the Caucasian male. The man asked, "Can they do that to me, even though I am white" While the answer is not always easy, I referred him to Piantadosi v. Public Service Elec. And Gas Co. and Klawitter v. City of Trenton to discuss the issues of reverse discrimination.
First, it is well established that an employer can fire an at-will employee for no specific reason or simply because an employee is bothering the boss. However, a terminated at-will employee has a cause of action against the employer for wrongful termination when the discharge violates state law or public policy. Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58, 417 A.2d 505 (1980).
The LAD prohibits unlawful discrimination against employees. In employment discrimination cases, the burden of proving a prima facie case lies with the plaintiff. State v. Segars, 172 N.J. 481, 494 (2002). Once a plaintiff satisfies this requirement, the defendant must articulate a non-discriminatory, legitimate reason for the discharge. The burden of proof still rests with the plaintiff, who has to establish evidence from which a factfinder could either (1) disbelieve the employers articulated reasons; or (2) believe the plaintiff's discriminatory reasons are more likely to have been the cause of discharge. Kowalski v. L.F. Products, 82 F.3d 1283, 1289 (3d Cir.1996), Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir.1994) ( citing St. Mary's Honor Center v. Hicks, 509 U.S. 502, 510-11, 113 S.Ct. 2742, 2749, 125 L.Ed.2d 407 (1993)). The plaintiff must demonstrate inconsistencies, contradictions or weaknesses in the employer's proffered reasons. Id.
When faced with a discriminatory discharge case the McDonnell Douglas test states that a prima facie case is established when an employee proves: " that he was in the protected * * * group,  that he was performing his job at a level that met his employer's legitimate expectations,  that he nevertheless was fired, and  that [the employer] sought someone to perform the same work after he left." Clowes v. Terminix International, Inc., 109 N.J. at 597, 538 A.2d 794; Erickson v. Marsh & McClennan Co., 117 N.J. 539, 550 (1990).
In reverse discrimination cases, when a complainant is not a member of the minority, courts have generally modified the first prong of the McDonnell Douglas standard to require the plaintiff to show that he has been victimized by an "unusual employer who discriminates against the majority." Erickson v. Marsh & McClennan Co., 117 N.J. 539, 551 (1990). In Erickson, plaintiff claimed that he was being discriminated against in order to promote a female supervisor. The court found this was not dispositive and did not meet the modified first prong of the McDonnell test because many of the other supervisors still working were male. Therefore, the company was not an unusual employer discriminating against the majority. The court likewise found the promotion of a woman was due to her romantic involvement with management, not her sex, invalidating Erickson's sex based discrimination claim. Id.
In Piantadosi v. Public Service Elec. And Gas Co., the court found that plaintiff's claims of reverse racial discrimination were unsubstantiated and that the facts did not meet the first prong of the of the Ericksontest. There, plaintiffs sought to establish disparate treatment between the disciplinary imposed on them and the less stringent discipline imposed on African-American employees. The court found that there was insufficient documentation to prove the claims because neither plaintiff had personal knowledge of the disparate treatment, nor did they produce detailed evidence of the foregoing. Piantadosi and Larmer claimed that they had been terminated following the filing of a race-discrimination complaint by several African-American employees, but the court, citing to Oakley, found that the existence of a complaint was not sufficient to satisfy the first Erickson prong. The proposed incidents of lesser discipline given to African-American employees in Piantadosi were not detailed enough to be more than mere speculation and conjecture. The Court explains that when disparate discipline is the basis for a claim of reverse discrimination, a plaintiff must show that " '[black] employees involved in acts ... of comparable seriousness ... were nevertheless retained....' " Jason v. Showboat Hotel & Casino, 329 N.J.Super. 295, 305 (App.Div.2000). Piantadosi v. Public Service Elec. And Gas Co., (Not Reported in A.3d, 2011 WL 3177318 N.J.Super.A.D.,2011. July 28, 2011).
In Klawitter v. City of Trenton , Ingram (an African-American), Klawitter (a Caucasian female), and Dehart (a Caucasian male) were police officers equally ranked on a promotion list. Any of the three candidates would have been acceptable for promotion, and there were no standards for selecting between the three. Ingram was chosen for the promotion. Keenan, the city's Public Safety Director at the time testified to his selection criteria, and his belief that Ingram was the most qualified. However, the jury could have reasonably concluded from the evidence (testimony from former police-chief Ernest Williams that the mayor wanted to promote Ingram to sergeant and he was looking for a way to create a vacancy before the current promotional list expired) that Keenan's purported selection process was a sham, infected by the city Mayor's racial preferences, or Keenan's belief as to the Mayor's racial preferences, and that Keenan intended to promote the African-American candidate regardless of merit. The jury resolved this credibility contest in favor of Klawitter. Klawitter v. City of Trenton, 395 N.J.Super. 302, 928 (App.Div.2007).
If you feel that you have been discriminated against based upon your race and gender, call Mark Law Firm, LLC who are established Employment attorneys, contact us at 908-626-1001 or 973-440-2311, or click the "contact us" page on our website and tell us your story.