A Flint jury recently awarded $535,000 to a white former employee wrongfully fired after making a racial comment. This verdict also highlights important differences when it comes to reverse discrimination claims under Michigan and federal law.
For background, Mr. Craig Hecht, a former charter school teacher, was fired from Linden Charter for undisputedly telling another employee that “white tables are better than brown tables and brown tables should be burned.”
At trial, however, Mr. Hecht was able to show that black staff members at Linden Charter Academy also made racial jokes but were never punished like him.
Reverse Discrimination under Michigan and Federal Law
Reverse discrimination generally refers to discrimination experienced by a member of a class that has not historically been disadvantaged.
Under both Michigan and federal employment discrimination law, an employment plaintiff – minority and non-minority – must generally satisfy a burden-shifting framework (commonly called the McDonnell Douglas test) to establish a prima facie case of discrimination by showing the plaintiff:
- Was a member of a protected class;
- Suffered an adverse employment action;
- Was qualified for the position; and
- Was replaced by someone outside the protected class or was treated differently than similarly-situated, non-protected employees.
Duch v. Mich. Dep’t of Corr. (E.D. Mich. Feb. 15, 2011).
Reverse Discrimination Differences under Michigan and Federal Law
In addition to the preceding test, under federal law, a reverse discrimination plaintiff must also demonstrate “background circumstances” to support the suspicion that the defendant is that unusual employer who “discriminates against the majority.”
In contrast, Michigan law diverged from federal law in 2004 on this point. Specifically, in Lind v. City of Battle Creek, 470 Mich. 230, 232-233 (2004), the Michigan Supreme Court abolished the different standards for minority and non-minority plaintiffs. In this regard, the Court reasoned that the Michigan Civil Rights Act simply protected all persons from racial discrimination equally, with uniform burdens of proof, regardless of the race or races involved.
Mr. Hecht’s verdict is a good reminder of three important points:
- Employers must have a clear policy prohibiting discrimination in employment. That policy should also define prohibited discrimination and provide multiple avenues for making complaints of perceived discrimination;
- A policy is only as good as its enforcement. And even the best policy that is not followed or (worse) applied inconsistently can result in an expensive head-on collision with a jury; and
- There are a number of similarities between federal and state employment law. But there are also significant differences. It is, therefore, critical to understand these similarities and leverage the strategic value or work to minimize the disadvantages offered to one side or the other, i.e., the employer or individual employee.