One of the largest jury verdicts in recent memory for a claim of employment discrimination was a $25.6 million award to a white manager who alleged that her former employer fired her because of her race.
But these wins involving discrimination against the so-called “majority” are few and far between.
Just getting the case to trial is difficult.
For example, last night, I read a Sixth Circuit decision involving a heterosexual woman who alleged that her sexual orientation motivated her employer to demote her from a position into which it had promoted her five years earlier.
Why did she think this?
Two years after the plaintiff’s promotion, the defendant assigned her a new supervisor. This supervisor is gay. The supervisor reported to an Assistant Director who is heterosexual. And the Assistant Director reported to the Director, who is also heterosexual.
With me so far?
In April 2019, the plaintiff applied for another promotion. She had pretty good performance reviews but didn’t get the nod. Instead, the plaintiff’s supervisor (gay) suggested that the plaintiff retire. Four days later, the defendant demoted the plaintiff and replaced her with a gay man. Later in the year, the defendant hired a gay woman to fill the role for which the plaintiff had applied in April.
Still with me?
As jaded as one might be about the likelihood that an employer would be biased against straight employees, this one has the makings of something.
But, in the Sixth Circuit, a plaintiff in the so-called “majority” must show “background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.” This is typically done with evidence that a member of the relevant minority group (here, gay people) made the employment decision at issue or with statistical evidence showing a pattern of discrimination by the employer against members of the majority group.
The plaintiff had neither.
First, the evidence established that the Assistant Director and Director — both heterosexual — decided to demote the plaintiff. Indeed, the plaintiff did not argue that the gay supervisor had any role in her demotion or the subsequent promotion of another gay man into the same position for which the plaintiff applied.
Second, the plaintiff’s only evidence of a pattern of discrimination against heterosexuals is her own demotion and the denial of the promotion. The Sixth Circuit requires a plaintiff to do more than point to her own experience to establish a pattern of discrimination.
It’s not impossible for an employee in the so-called majority to establish unlawful bias at work. But it sure seems difficult.