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.
Further, the workplace involved was the site of a 2003 mass-shooting spree by a white supremacist employee, who killed five black employees and himself and wounded eight others. Company management had been publicly criticized - including criticisms in network television expose's - for having not enforced its "zero tolerance" policy against the white supremacist, who had made assorted threats to commit hate crimes. The shootings also became the subject of substantial civil litigation by the victims and their families. The Court of Appeals observed that a jury could reasonably find that the employer had a financial motivation to enforce the "zero tolerance" policy more heavily against white employees, in an effort to disprove any leniency toward white violators.
The district court's decision had been based on the fact that the plaintiff was a supervisor and the other violators being used as cohorts were not. Many courts follow the reasoning that managers and non-managers are not similarly-situated, and that a company may lawfully enforce a policy against managers more harshly than non-managers. This argument may now be presented to a jury, at trial, but the Eleventh Circuit held that differences in employees' job ranks are not, by themselves, not dispositive.