The Case for Selective Discrimination

By his own estimation, David Duvall was a “strong advocate of diversity and inclusion.” He sat on the executive committee that supervised DEI initiatives at Novant Health, the medical nonprofit where he worked. He hired a Black woman as Director of Marketing, subsequently promoting her to Vice President. He even met with the pastor of his church to promote equality within that space. Such were the details of a lawsuit he filed against Novant Health, after being fired on July 30, 2018, on the cusp of his fifth-year anniversary at the company. Duvall sued his former employer for unlawful termination, citing racial and gender discrimination, as a white man. In late October, a federal jury of his peers in North Carolina agreed with Duvall’s perception of events and made history this October by awarding the former Senior Vice President of Marketing and Communications $10 million for his troubles. This ruling, and other similar incidents of white people claiming racial discrimination, highlight a need for the critical reassessment of who qualifies for racial protections in order to prevent the distortion of racial justice policies and programs.

The irony of a white man being financially compensated for court-legitimized claims of racial discrimination cannot be taken for granted. Duvall’s lawyers referenced his former employer’s robust plans to promote diversity in the workplace as part of a rebuttal to the notion that he was terminated for not meeting the company’s standards, noting that he was replaced by two women—one white and one Black. They mentioned that there were other white men laid off during his tenure, implying a pattern of white men being laid off to make room for more “diverse” staff. These assertions mirror the anxieties shared by a number of white people who feel like they are the ones being discriminated against in the contemporary social emphasis on increasing the representation of people of color across a range of spheres and industries.

Novant Health argued that as a well-remunerated high-level executive, Duvall was “expected to perform exceptionally, not just demonstrate good or adequate performance.” According to court documents, he “fulfilled what was asked of him,” but “demonstrated over time that he was not exceptional or a successor” to his superior. They claimed that Duvall delegated critical duties to subordinates, did not display enterprise leadership, and had an inability to speak in front of the Board of Directors. Nevertheless, a jury of six white people, one Latinx person, and one Black woman, ultimately determined that the white man’s termination was the result of an “avowed, even boastful, ‘strategic imperative’ to rely on racial and gender targets to reshape Novant Health’s workforce and leadership to reflect the community it served,” as alleged by the plaintiff.

Against the backdrop of a movement that has been relentlessly pointing out the scarcity of Black people and POC in high level positions, the endemic mistreatment and discrimination faced by Black employees in the workplace, the shortcomings and abject failures of white leadership in nonprofits serving marginalized communities, the racial wage gap, and the generational wealth gap, this legal decision feels like a slap in the face. Let it be a wakeup call, that the courageous conversations on race that we’ve been having are all well and good until white people start being fired, demoted, or not hired, concurrent with our progressive analyses of what racial equity looks like in practice. Once real change starts to occur, those used to being in power have no problem with co-opting the language of racism to preserve their socioeconomic interests. Here we are in the 21^st century, with the Civil Rights Act of 1964 being brazenly manipulated to simultaneously demonize an organization’s racial equity efforts and make a disgruntled white man a lot richer.

Duvall is not alone in his unmitigated audacity. Across the country, white people are invoking claims of racial discrimination to subvert plans for racial equity that threaten their sense of entitlement to power and economic advantage. This is evident in the organized resistance to Black Farmers receiving the policies and aid that is owed to them, as chronicled by Dañia Davy. In efforts to remedy the “long-standing history of exclusion and discrimination Black farmers have faced and continue to experience,” Senator Cory Booker (D-NJ) introduced the Justice for Black Farmers bill. Senator Raphael Warnock (D-GA) proposed the Emergency Relief for Farmers of Color bill, “which designated Federal funds for Socially Disadvantaged Farmers and Ranchers to compensate for numerous instances of disparate treatment by the USDA.” Both bills informed the American Rescue Plan Act (ARPA), which was officially established in March 2021. Under the ARPA, Congress made provisions for debt relief for 17,000 eligible farmers of color, among whom were 3,100 Black Farmers.

But white men can’t stand to be excluded, not after centuries of preferential treatment. As of 1964, have we all not ascertained that “racial discrimination” is morally indefensible?

Indeed, Davy writes,

Almost immediately after ARPA was passed, on April 29, 2021, lawyers representing white farmers have filed over 10 lawsuits against Secretary Tom Vilsack of the USDA alleging race-based discrimination in the implementation of Section 1005 for restricting the emergency debt relief exclusively to farmers and ranchers of color. One of these suits resulted in class certification for white farmers who are ineligible for the Section 1005 debt relief. These lawsuits have, at least for now, halted the intended debt relief. Tragically, even at a time of heightened economic peril due to a global pandemic which has disproportionately burdened communities of color both financially and in terms of mortality, meaningful relief has been put off once more.

A similar situation has disrupted the implementation of Biden’s COVID-19 relief plan for restaurants. The Congress-approved Restaurant Restoration Fund prioritized white women, people of color and “socially and economically disadvantaged” people, allowing them to be considered above other applicants. This prompted café owner Phillip Greer to file a lawsuit against the Small Business Administration (SBA), with the noble assertation that white men should not have to wait in line behind other restaurateurs. In a Texan federal district court, Judge Reed O’Connor ruled in favor of Greer, deciding that the Biden administration engaged in systemic gender and race discrimination in its rollout of COVID-19 relief. The use of positive race-conscious criteria in policies and programs is under threat, even as it has gained momentum in recent years due to increased awareness of rampant systemic inequalities. The opposing argument is perhaps best summed up by Chief Justice John Roberts, who stated in 2007 that “the way to stop discriminating on the basis of race is to stop discriminating on the basis of race.”

How convenient that, after generations of white supremacist policies overtly or covertly excluding people of color from socioeconomic advantages instituted by the government, white people are so eager to label any and all remedies as “racial discrimination.” The sordid history of race in society, as we know, began in the 17^th century with the institution of slavery as a replacement for white indentured servitude. Over the years, multiple laws and policies were implemented for the benefit of whites to the detriment of BIPOC. The Social Security Act of 1935 guaranteed income after retirement, for example, but did not extend to agricultural workers or domestic servants, jobs predominantly held by BIPOC. At every institutional level, policies regarding voting rights, bank loans, mortgages, educational opportunities, land ownership, you name it, intentionally disadvantaged people of color, in some cases without even mentioning race or gender.

White people would have us believe that following the Civil Rights Act of 1964, America suddenly became a post-racial utopia. Yet they have no explanation for why the racial wealth gap is worsening, not improving, or why there is still minimal representation of black people in positions of power. The reality is that unconscious biases, conscious racism, systemic inequities, financial obstacles, police brutality, and antiblackness in the justice system, the ensemble of which are the true definition of “racial discrimination,” continue to affect the black population to this day. A colorblind approach to rectifying racial discrimination is not only illogical and ineffective, but as the white supremacists have shown, it is entirely counterproductive to achieving racial equity.

The moral outrage at what they perceive to be “reverse racism” is no different from the outrage they have exhibited at every sign of progress, from the abolition of slavery to desegregation, to the election of the first Black President. Once white economic interests appear to be jeopardized, or white privilege is challenged, there will be backlash, sometimes violent, sometimes social, and quite often legal. In fact, they are no longer considering strides for equity to be “reverse racism” or “reverse racial discrimination” but have developed the gall to simply call it racism. The point of this linguistic shift is to erase the allusion to a severely imbalanced power dynamic and contrasting experiences of white and BIPOC in society, due to the reality of historical and modern colonial oppression.

White people, even those who attend DEI meetings and those who claim to be allies, are sabotaging our best efforts to tangibly address racial inequities, twisting the very laws meant to address this against us. If the law states that people are protected from racial discrimination, does this apply to white people, even though they have been the benefactors of white supremacy? Is whiteness a protected class the same as any other? As Kimberlé Crenshaw puts it, “the mystifying role of law in naturalizing and insulating the status quo must be radically rethought.” The lack of clarity and specificity on this issue has the potential to nullify all attempts to diversify ranks, pay reparations, and even speak honestly and candidly about race. Left to the interpretation of mostly white juries and white judges, white people’s specious claims of racism will be validated.

You see, we can’t simply shift to colorblind rhetoric after decades of heavily prioritizing white people in every way possible and expect that this would produce the racial equity that Dr. King dreamed of. The generational wealth gap, for one, will not automatically be fixed if there are no new policies that explicitly advantage black people. There would need to be reparations, a thorough analysis of the existing policies, and perhaps a variety of programs specifically designed for black people’s benefit. If society eschewed those measures as racist and opted to operate as it does today, black wealth may improve very minimally, but the wealth gap itself— white families being on average 10 times richer than black families—will remain in place.

Similarly, if some white people are not replaced by people of color in leadership positions, there won’t be diverse leadership. If people of color are not hired, there won’t be diverse staff. Amending the insidious discrimination of the past to any significant degree will not be achieved through neutrality or colorblindness. It will be achieved through prioritizing and empowering those who have been disempowered and sidelined for so long. It will require a host of racially conscious measures, one of which could well be selective discrimination. After centuries of pro-white ideology being enforced through terrorism, intimidation, and the rule of law, humane and moral “pro-color” initiatives are the only practical solution.

As more instances of white people pulling the proverbial “race card” start cropping up, there needs to be greater emphasis on the inadequacy of colorblind rhetoric, and greater precision around who qualifies for racial protections. The dethroning of white supremacy is integral to racial equity. And it would be impossible to attain without an ability to address the nuances of race, without a keen ability to discern between reparative racial provisions and destructive ones.