Can I Sue for DEI Discrimination?
A white employee passed over for a promotion in favor of a minority. A Hispanic employee terminated so the employer could replace him with a more favored minority. A Black man denied multiple promotions because the employer wanted to fill the positions with females. A woman denied a promotion so that the employer could promote a more favored minority. All more qualified, all not the right skin color or sex.
Diversity, Equity, and Inclusion programs, while they may be well intended, have been used by employers as cart blanche to make decisions based on race and sex.
However, Title VII of the Civil Rights Act and various other statutes make it unlawful for employers to discriminate based on race, sex, national origin, etc.
Under these statutes, you may be able to sue if your employer has discriminated against you based on your race or sex when making an employment decision.
Under Title VII, claims for disparate treatment based on race or sex may be viable. These are sometimes referred to as reverse discrimination cases, but the claims are brought under the same statutes as any other discrimination claim.
Do I Have a Viable DEI Discrimination Claim?
There are many factors to consider when determining whether to file a DEI discrimination claim.
The first factor is the strength of your case on liability, i.e., whether you will be able to meet the legal requirements for a discrimination claim.
Although the legal framework is much more complicated, to be successful on a discrimination claim, you will have to prove 1.) that the employer took an adverse action against you, and 2.) the employer took the adverse action against you because your protected class, i.e., race, sex, etc.
The law generally defines an adverse action as a “tangible employment action,” which includes hiring, firing, promotions, compensation and benefits, or other material terms or conditions of employment. Thus, for example, if the employer refused to hire you, refused to promote you, or terminated your employment because of your race or sex, you have suffered an adverse employment action.
The second legal requirement for a DEI discrimination claim is what is referred to as causation. This can be proven through direct or circumstantial evidence. Oftentimes employers are not shy about their DEI programs, and written DEI programs may or may not qualify as direct evidence. The key here is that you must be able to demonstrate that the employer took the adverse action because of your race or sex.
The second factor to consider when determining whether to file a DEI discrimination claim is damages, i.e., the amount you may be able to recover should you bring a DEI discrimination lawsuit. In general, economic damages are determined by what you would have made had the employer not discriminated against you minus what you actually made. You may also be able to recover noneconomic damage, such as emotional distress, and punitive damages, which punish the employer for their conduct.
The third factor to consider when determining whether to file a DEI discrimination claim the impact on your life. Litigation can be stressful. In addition, in the case of failure to promote cases, the lawsuit may result in you having to find other employment.
Other Claims for DEI Discrimination
There are two other claims related to DEI discrimination.
The first is a hostile work environment claims. These claims arise when you are subjected to severe and pervasive harassment because of your race or sex.
The second is a retaliation claim. This claim arises when you make a complaint of race or sex discrimination or harassment and are retaliated against because of the complaint.
How to Know Whether I Have a Viable DEI Discrimination Claim
Only a DEI discrimination lawyer can advise you as to whether you have a viable DEI discrimination claim. At Fett Law, we offer free online case evaluations. An attorney will review your submission and, if it appears that you have a viable case, we will schedule a free consultation.
