Employers sometimes ask whether it matters if they are inconsistent in their enforcement of non-competes. Typically, the issue is analyzed in terms of whether inconsistent enforcement undercuts the legitimate business interest justifying the restriction. However, in a pending lawsuit, Miller v. Canadian National Railway Co., the issue is being raised in a different context: whether alleged inconsistent enforcement was racially motivated. Specifically, the plaintiff in that case alleges that “[b]y enforcing the non-compete against Miller and not against similarly situated white employees, Defendants are interfering with Miller’s future employment relationships because of his race.”

Enforcement of non-competes rarely comes up in the context of a discrimination claim, but as illustrated by this case, this is another factor of which employers should be aware when considering whether to enforce a restrictive covenant.