We represent victims of reverse discrimination and anti-DEI whistleblowers

Most employees have a grasp on what constitutes illegal discrimination, and changes in the way anti-bias laws are being applied under the Trump administration have received a great deal of attention. As companies move away from diversity, equity and inclusion (DEI) programs and other activities that favor one demographic group over another, there are concerns that discriminatory practices might remain, but with different labels.

To address this problem, a recent Justice Department memorandum shines a spotlight on “proxy discrimination,” a subtle yet unlawful practice in which ostensibly neutral criteria serve as stand-ins for disparate treatment based on protected personal characteristics. Instead of stating that a hiring program will favor applicants of a certain race or sex, a company might use “cultural competence,” “lived experience” as factors in the decision-making process. Another way to evade detection is to target a job search toward a geographic area where the residents largely belong to a particular demographic group. 

It can be very tricky to distinguish between a neutral screening factor and an unlawful evasive tactic. Certain cases of proxy discrimination stem from hiring processes where the review involves an applicant’s ability to “overcome obstacles.” This might seem like a completely legitimate standard. Who wouldn’t want an employee who has demonstrated that they can overcome obstacles? However, how an employer defines this metric makes all of the difference. A review where applicants describe actual experiences where they succeeded despite difficulties can be fair. On the other hand, assuming that someone has overcome obstacles merely because of their race, sex or religion is much more problematic. 

The DOJ memo warns that any policy designed or applied to skew outcomes based on protected characteristics—even indirectly—can trigger liability. Over the past few years, companies have even used artificial intelligence to conduct proxy discrimination. Courts will look beyond labels to examine whether criteria functionally screen individuals by race, gender, age, disability or other protected status. 

Simply put, proxy discrimination is discrimination. Whenever possible, companies should document applicants’ skills and experience when making hiring decisions. They should also conduct frequent reviews to prevent unlawful bias from creeping in. People who believe they did not get a job or promotion they wanted even though they were the most qualified candidate should speak with an employment attorney to help determine if they might have been a victim of illegal disparate treatment.  Kardell Law Group represents victims of discrimination and knows how to get to the truth when employers try to hide their unlawful employment practices by using a different label.