“Reverse discrimination” may be found when white supervisor was fired for violating “zero tolerance” policy, but black employees who violated policy w

Lexology
Sherman & Howard LLC
Theodore A. Olsen
USA
September 1 2011

Although "reverse discrimination" claims are not often asserted, and when asserted, are seldom successful, the Eleventh Circuit Court of Appeals recently ruled that such a claim might be viable, when a white supervisor was fired for sending a "Top Ten Reasons Why There are No Black NASCAR Drivers" joke e-mail to others, but two black employees who forwarded a "How to Dance Like a White Guy" video to others were not dismissed. Smith v. Lockheed-Martin Corp., 2011 WL 2567777 (11th Cir. June 30, 2011). On this basis, a summary judgment granted to the employer by the district court was vacated.
Not only did the employer arguably enforce its "zero tolerance" policy differently, the evidence also showed that, when the plaintiff's "NASCAR Drivers" e-mail dissemination was investigated by the company, the races of the white supervisor under investigation and past violators of the policy were shown on a decision-making matrix. A jury could reasonably find that this matrix proved the plaintiff's discharge was due to his race.

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