Reverse Bias Claims Fail in Absence of Any Evidence of Discrimination

​A white school district employee who claimed that he was rejected for two athletic administration positions at public high schools because of reverse discrimination could not go forward with his claims, a federal appeals court ruled. There was no evidence that would allow a jury to find that the school district, in offering the positions to a Black applicant, discriminated against the employee because he is white, the court said.

The employee began working for the school district as a social studies teacher in 1991, and in 2007 became the athletic director at one of the district's high schools. In 2017, he applied to serve as corporation director of athletics, a newly created, districtwide position.

The district superintendent interviewed four applicants and ultimately recommended someone else for the position. The superintendent explained that the chosen applicant interviewed very well, inspiring confidence in his ability to repair the school district's strained relationship with the state's high school athletic association. The employee interviewed poorly, seeming to boast of firing 24 coaches during his tenure at the high school, the superintendent said.

Furthermore, the superintendent said, he questioned the employee's ability to restore the school district's relationship with the state association, given that prior instances of noncompliance with athletics regulations occurred while the employee was a high school athletic director. The school board hired the applicant recommended by the superintendent.

The employee then sued the school district under Title VII of the Civil Rights Act of 1964, alleging reverse discrimination. He claimed that he was much more qualified than the chosen applicant for the position, and that, therefore, his not receiving it had to be the result of unlawful discrimination. He alleged that the superintendent, himself Black, wanted the chosen applicant, who is also Black, in the role.

In March 2019 the school district announced the elimination of the corporation director of athletics position and the creation of a hybrid dean of students/athletics position at each of the four high schools in the district. The employee, the person previously chosen for the corporation director of athletics position, and seven other candidates applied for the four new positions. Although the employee was interviewed, he did not receive a job offer. The former corporation director of athletics was offered a position at one of the high schools. The principal who offered him the position explained that the offer was based in large part on the applicant's interview.

The employee then amended his original complaint to add a claim of race discrimination based on his not receiving one of the new dean of students/athletics positions.

The school district moved to have the lawsuit dismissed before trial, and the court granted the motion, explaining that the employee had failed to identify any evidence upon which a jury could rely to find he did not receive the two jobs in question because of his race.

The employee appealed.

No Evidence of Pretext

The employee relied on the McDonnell Douglas burden-shifting framework in his attempt to get his reverse discrimination claims to trial. He met his initial burden, and the employer offered a nondiscriminatory justification for the challenged employment actions. It was therefore up to the employee to prove that the employer's proffered nondiscriminatory reason was a pretext for discrimination.

Plaintiffs like the employee most often seek to show pretext by pointing to weaknesses, inconsistencies or contradictions in the nondiscriminatory justification that would permit a reasonable jury to infer that the employer did not tell the truth, the appeals court noted. But, the court stressed, identifying an inconsistency—or even a lie—is not necessarily sufficient to prove that the employer's rationale was a pretext for discrimination. What ultimately matters is causation: The plaintiff must point to evidence that would allow a jury to find a connection between the employee's race and the employee failing to receive either of two athletic administration jobs.

In other words, the court said, the employee had to show not only that the school district lied about its reason for not hiring him, but also that the true reason was because of racial discrimination. He did not clear this hurdle, the court concluded.

As to the employee's claim that he was far more qualified than the chosen applicant for the first districtwide position, the court conceded that the employee might have been the more qualified candidate on paper alone. But the school district explained that side-by-side resume comparisons were not the only measure. How applicants performed in interviews mattered, and, on this measure, the chosen applicant greatly outperformed the employee, the court said.  

And although these assessments were subjective, they were entirely proper, the court said, especially given the absence of anything suggesting that considerations of race influenced the hiring decision.

As to the second position, the court said, the evidence showed that the chosen applicant received the job based largely on the quality of his interview. The employee interviewed poorly, ranking last among all nine applicants in the scoring compiled by the school district's interview committee. Furthermore, the difference in qualifications on paper between the employee and the chosen applicant had narrowed at the time the school district created the new position: The chosen applicant had accumulated two more years of relevant experience by serving as the corporation director of athletics.

The appeals court affirmed the trial court's decision dismissing the employee's lawsuit.

Groves v. South Bend Community School Corp., 7th Cir., No. 21-3336 (Oct. 19, 2022), petitions for rehearing and rehearing en banc denied (Nov. 18, 2022).

Joanne Deschenaux, J.D., is a freelance writer in Annapolis, Md.