NOVA Legal Beat: Harder for Men to Prove Sex Discrimination?

Editor’s Note: This sponsored column is written by Mathew B. Tully of Tully Rinckey PLLC, an Arlington firm that specializes in federal employment and labor law, security clearance proceedings, and military law.

Q. Is it harder for men to prove sex discrimination than women?

A. Generally, men should not face a heavier burden for proving sex discrimination than women. Discrimination complaints or lawsuits filed by a member of a majority class, such as male, are referred to as “reverse discrimination” cases, and they are not uncommon. In fact, one-third of sex discrimination complaints filed in the federal sector in FY 2012 were filed by men, according to Equal Employment Opportunity Commission (EEOC) statistics.

For standard discrimination cases in which a member of a minority class, such as female, black or disabled, courts require plaintiffs to initially show the following:

1. they are members of a class protected under laws such as Title VII of the Civil Rights Act;
2. they were qualified for the position for which they applied; and
3. the employer’s rejection of their application gave “rise to an inference of discrimination.”

These factors form the basis of what is known as the McDonnell Douglas framework, so-named after the 1973 U.S. Supreme Court decision in which these factors were outlined, the 4th U.S. Circuit Court of Appeals noted in McNaught v. Virginia Community College System (2013).

Over the years, as the 4th Circuit further noted in McNaught, appellate courts have reached differing opinions as to whether this standard framework — or a framework that placed a greater burden on majority class plaintiff — should be applied to reverse discrimination cases.

On one side there were five circuit courts, including the U.S. Circuit Court for the District of Columbia, that held majority class plaintiffs to a higher standard, requiring them to show “background circumstances that demonstrate that a particular employer has reason or inclination to discriminate invidiously against [majority groups]…or evidence that there is something ‘fishy’ about the facts at hand.”

Meanwhile, three other circuit courts just required majority class plaintiffs to show they satisfied the standard McDonnell Douglas framework.

For years, the 4th Circuit, which has jurisdiction over Virginia district courts, declined to pick a side in this standard-versus-enhanced framework debate. But that ended with the court’s decision in McNaught. The 4th Circuit decided to apply the standard framework, noting that the “application of the same test to both ‘ordinary’ discrimination plaintiffs and ‘reverse’ discrimination plaintiffs better reflects overarching principles expressed by the Supreme Court,” namely “that Title VII prohibited reverse discrimination ‘on the same terms’ as discrimination against minority groups.”

The bottom line is discrimination based on race, color, sex, gender, national origin, religion, disability, and age is unlawful. Employees who believe they have been subjected to discrimination based on any of these factors should immediately consult with an experienced employment law attorney.

Mathew B. Tully is the founding partner of Tully Rinckey PLLC. Located in Washington, D.C., Tully Rinckey PLLC’s attorneys practice federal employment law, military law, and security clearance representation. To speak with an attorney, call 703-525-4700 or to learn more visit fedattorney.com.