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"Old White Man" Allowed to Sue Employer's Diversity and Inclusion Plan

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In DiBenedetto v. AT&T Services, Inc., a 58-year-old White male defeated the defendant AT&T's efforts to dismiss his case in connection with a reduction in force.  The question according to the Atlanta federal court was whether the plaintiff had alleged sufficient facts to plausibly support an inference that his termination was motivated in part by his race or gender.  According to Plaintiff, AT&T's diversity program was a company-wide initiative which had the purpose and effect of biasing hiring and retention decisions in favor of non-White and female employees.  Plaintiff alleged that the senior leadership circulated detailed company demographic information to decision makers - explicitly broken down in terms of race and sex - to both inform and, according to plaintiff, influence employment decisions.  Plaintiff also noted that non-White and female candidates were disproportionately hired in the finance department as the diversity program was implemented.  

While the court indicated that this evidence may not count heavily in the end, it stated that Plaintiff's allegations were more serious in the period leading up to his termination.  The CFO had sent an email to the finance department explaining the decision makers "must focus more on attracting and retaining diverse employees throughout our organization, especially at senior levels."  Around the same time, the CFO was stressing that there was "more work to do" on implementing the diversity program, and the Vice President told the plaintiff that he was unlikely to succeed as Vice President of the group because he was "an old, White male."  Just two months later, plaintiff received notice he would be let go.  The workforce reduction cut at least a dozen employees from plaintiff's department, and all were White, and 75% were male.  Further to the point, and around the same time, another announcement came out that the company was "doubling down" on its diversity efforts.  

The court found that the allegations were supported by detailed factual allegations, and together they at least plausibly suggested that plaintiff's race or gender had played an unlawful role in his termination. 

The court was quick to say that its ruling was not meant to be a statement on the virtue of efforts by AT&T and other companies to promote diversity and inclusion in their workforces.  "The only question presented here is a very narrow one: Whether AT&T's [diversity and inclusion plan] - however laudable in theory, was unlawfully applied in this case."  

Editor's Note - These cases are often called "reverse discrimination," and such cases allege discrimination against the majority rather than any minority.  Most employers lawfully adopt and apply various diversity policies, including Affirmative Action Plans, but in this case, the anecdotal evidence of inappropriate statements made to plaintiff alleging that given his age and race, he was unlikely to be successful, created enough of an inference of discrimination that the Defendant would be unable to have the case dismissed without further discovery and potentially trial proceedings.  Therefore, even in implementing diversity programs, employees must be careful in how they apply their programs.  This is particularly true when an adverse action occurs to those not a part of the diversity efforts.

This is part of our August 2022 Newsletter.

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