By Brandon L. Dixon and Erin Dougherty Foley

Seyfarth Synopsis: A recently filed “reverse” discrimination action in an Ohio federal court is reflective of a trend about which we recently cautioned employers. Namely, employers are facing a pushback–often by white, male employees and applicants–on their efforts to address and eradicate persistent race and gender disparities in their workforces. These disparities are often the result of past explicit race and gender discrimination, which organizations may choose to remedy, or may be compelled to remedy via a consent decree, for example. The basic argument, as in Kohler v. City of Cincinnati, is that the employer’s efforts to increase diversity have worked too well. That is, in seeking to address discrimination against minorities in the past, the employer overreached in a manner that resulted in discrimination against white and/or male employees, creating a catch-22 for these well-intentioned employers.

The allegations in Kohler v. City of Cincinnati are simple. The City of Cincinnati was a party to two consent decrees related to its police force. The City first entered an agreement in 1980 with the U.S. government in connection with a lawsuit asserting the police department had engaged in a pattern or practice of employment discrimination on the basis of race and sex with respect to hiring, promotion, assignment, training, and compensation of officers. Among the consent decree’s requirements for the City was hiring, at a minimum, qualified black and women entry-level officers at their rate of representation in the pool of 1980 police recruits, 34% and 25%, respectively. With respect to hiring sergeants, the goal was to fill 25% of the promotions with black and women candidates. Notably, the 1980 consent decree explicitly stated that the City did not have to hire unnecessary personnel to meet its goals, nor “promote a person who is less qualified over a person who is more qualified . . . .” The City also entered a similar consent decree with the State of Ohio in 1987 concerning the promotion of black and women officers to the lieutenant, captain, and assistant chief ranks.

Fast-forward to 2020, and plaintiff Kohler recently brought a lawsuit against the City of Cincinnati, its mayor, and the United States challenging the consent decrees. Citing a “massive shift in demographics” in the police force that has resulted from the City surpassing the targets set out in the consent decrees, plaintiff alleges that the consent decrees have served their purposes, and the City “does not discriminate against women and/or minorities” in its employment practices. But it “does illegally discriminate against white males,” he claims. He brings his lawsuit under the 42 U.S.C. § 1983 on behalf of himself and other white males. For his part, he challenges a promotion decision coming out of a March 2020 officer examination, contending a black officer who scored lower than him (and other white male examinees) was promoted solely as a result of the City’s obligations under the 1980 consent decree. He also seeks to represent a proposed class of white males who have applied for employment or promotions within a year of the complaint, and who were denied or delayed promotion “due to the race- or sex-based quota systems.” After filing a complaint, he also moved to preliminarily enjoin the enforcement of the consent decrees.

At this stage, the Plaintiff appears to be relying on a ruling that is, on its face, favorable to his position: Cleveland Firefighters for Fair Hiring Practices v. City of Cleveland, 669 F.3d 737 (6th Cir. 2012). That case addressed a similar challenge to a 1975 consent decree involving race discrimination in Cleveland’s fire department. Under its terms, that consent decree required periodic review and extension. In 2009, the parties agreed to updated goals and moved the court to extend the consent decree, but the district court overseeing it declined. It reasoned that significant and sufficient progress had been made towards increasing the diversity in the fire department, and therefore judicial monitoring was no longer necessary. The Sixth Circuit agreed with that decision, but remanded with direction to the district court to show its work by answering specifically whether Cleveland still had a “compelling interest” to maintain a classification system based on race to remedy discrimination 30 years after it first entered into the consent decree. Kohler is hoping for a similar outcome.

While this case is only in the infancy of litigation, employers should keep an eye on how it unfolds. Several factors, including the current political climate in the U.S., may lead to a continued increase of “reverse” discrimination cases in the coming years. And plaintiffs’ success in cases like Kohler will require employers to scrutinize their diversity efforts and be more thoughtful about the impact of facially beneficent diversity initiatives on individuals outside the classes of employees they seek to benefit. Stay tuned, and we will follow up with any noteworthy updates on this and similar matters.

For more information on this or any related topics, please contact the authors, your Seyfarth attorney, or any member of Seyfarth Shaw’s Labor & Employment Team.