A white male sued his employer, based on race and sex discrimination, and the jury awarded him $10M.

The plaintiff, hired in 2013 as the organization's senior vice president of marketing and communications, had received strong performance reviews and garnered national attention for the marketing program he developed.

Then, the employer fired him, surprising the plaintiff's colleagues and other managers. No documented performance issue or reason for termination was presented at trial other than the employer allegedly stated that it was "going in a different direction."

The jury heard evidence about the employer's diversity and inclusion (D&I) initiative and goals. The employer increased the number of female leaders and decreased the number of white leaders in the year after the plaintiff was fired. Evidence was admitted into the trial that the plaintiff's interim replacement, a Black woman, scored lower than the plaintiff, and that all three of the finalists for the plaintiff's permanent replacement were women – two Black, and one white.

The jury concluded that the plaintiff was terminated because of his race and gender.

On appeal by the employer, the U.S. Court of Appeals for the Fourth Circuit reduced the judgment to $300,000 because that is the statutory damage cap under Title VII for a large organization.

The Court also stated, "To be clear, employers may, if they so choose, utilize D&I-type programs. What they cannot do is take adverse employment actions against employees based on their race or gender to implement such a program." Eric B. Meyer "How did a white man convince a jury to award him over $10M for race and gender discrimination?" www.lexology.com (Apr. 23, 2024).

Commentary and Checklist

Although a great deal of discrimination and harassment training regarding Title VII protected classes – sex, race, color, religion, and national origin- focuses on historically-disadvantaged members – females, people of color, members of lesser-known religions, and people hailing from other countries – this case highlights the importance of including, in your training, several examples of how Title VII protects everyone.

The Court gave helpful information by stating that the choice to engage in D&I initiatives was an employer's to make, but in setting and attaining those goals, employers cannot subject employees to negative employment actions based solely on a protected class status. The jury had no evidence before it of any other reason for the plaintiff's termination, other than his sex and race, and it communicated that with the $10M award.

In 2023, the U.S. Supreme Court issued an opinion in "Students for Fair Admissions Inc. v. President & Fellows of Harvard College". https://www.supremecourt.gov/opinions/22pdf/20-1199_hgdj.pdf

In that case, the Supreme Court rejected the use of race-conscious admissions in higher education on constitutional grounds. Although the case did not apply to private employers and does not address a private employer's desire to create a more diverse workforce, the highlighting of the case has spawned anti-DEI litigation, challenging use of DEI initiatives in the corporate world.

What are the types of employment opportunities employers should make sure all employees are offered on an equal basis?

• Work environment/location
• Work hours/shifts
• Overtime
• Job assignments
• Hiring
• Re-hire after furlough
• Promotions
• Training
• Accommodations
• Benefits
• Salary
• Retirement
• Housing
• Other personal allowances, like use of a vehicle, uniforms, parking