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Labor Law: A white man awarded $10 million in damages is a reminder that employers can’t discriminate in the name of diversity
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Labor Law

Labor Law: A white man awarded $10 million in damages is a reminder that employers can’t discriminate in the name of diversity

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RTD Metro Business law columnist, Karen Michael.

A federal jury in late October awarded David Duvall $10 million in punitive damages for discrimination following his termination as senior vice president for marketing and communications at Novant Health Inc. in North Carolina.

Duvall, a white man, alleged that he was terminated to support diversity efforts when he was replaced by two women — one white and one Black.

Some are describing this case as “reverse discrimination.” It isn’t. It’s just discrimination.

Duvall was terminated on July 30, 2018, just days prior to his five-year work anniversary and following excellent performance reviews and no documented performance concerns. He alleged his termination violated Title VII of the Civil Rights Act, which protects against discrimination based, in part, on race and gender.

Novant Health, the Winston-Salem, N.C.-based health system that operates 20 hospitals and medical centers, contended that Duvall’s termination was for legitimate reasons, to include his lack of engagement, although internal documents showed otherwise.

Luke Largess, an attorney from Charlotte, N.C., who represented Duvall, said in an interview that there was a concerted effort in 2018 to remake the demographics of the leadership team. The jury saw documents that had the express goal and a timeline for a plan in 2018, he said. Duvall’s boss had seven white male direct reports in January 2018, but only two by January 2019, and none today.

The jury, Largess said, agreed that race and gender were unlawful factors in his termination and that “he was fired solely to make room for more diverse leaders at Novant Health.”

The evidence went undisputed that Duvall met all of his goals and had no written criticisms, and, in fact, those reporting to Duvall were surprised by his termination. “The absence of any documentation of concerns and the timeline of the plan were important to our case,” Largess said.

Largess wants to make clear that the lawsuit was not a statement against diversity and inclusion programs. In fact, his client was a strong advocate for these programs at Novant and sat on the executive committee that supported the initiatives.

Duvall had received praise from the health system’s diversity and inclusion chief for his efforts, and had even met with the pastor from his church to discuss ways to advance diversity there.

Duvall hired a Black woman as director of marketing and then promoted her to vice president. That woman now has Duvall’s former position.

“That was the irony in his termination, his strong belief in and actions toward diversity and inclusion. He is not an angry white man,” Largess said.

“The lawsuit was only about the need to run such programs lawfully,” he said. “We believe the punitive damages award was a strong message that an employer cannot fire employees based on their race or gender to create opportunities to achieve diversity targets. That is plainly unlawful and very harmful and that is what the jury denounced here.”

Following the verdict, the jury foreperson, a Black woman who helps run the diversity and inclusion program for a national company, stayed behind after the trial to hug Duvall and express her sympathy over his termination and how he was treated, Largess recalled.

Duvall did not seek compensatory damages. The judge has scheduled a hearing for December to determine Duvall’s loss of back pay as well as any additional money he may be entitled to that will make him whole.

In a statement following the verdict, Novant expressed disappointment, believing the jury’s decision was not supported by the evidence.

Novant also expressed support for its “robust diversity and inclusion programs,” which it said can “co-exist alongside strong non-discriminatory policies that extend to all races and genders including white men.” Novant also said that the verdict “will not change Novant Health’s steadfast commitment to diversity, inclusion and equity for all.”

The events leading to this case occurred a year before the murder of George Floyd, and thus prior to the more recent emphasis on diversity efforts, especially around racial equity.

This case should be a reminder to every organization that diversity programs should not include quotas or set-asides.

During one of my trainings, a participant noted that her department was largely retirement age and that their No. 1 stated goal was to hire younger workers to replace the aging workforce. She questioned if this formed a legitimate non-discriminatory reason.

In talking about her suggested hiring strategy, she came to the realization that she added a discriminatory element — youth — to the requirements. While her motives might be pure, her action of excluding older workers was discriminatory.

The Duvall case also provides a roadmap for bad employment decisions.

Just because an employee is “at will” doesn’t mean the employer won’t be challenged for the decision. Employers need well-documented reasons for their decisions, and should not rely upon verbal discussions or hyperbole. If you are going to terminate someone for poor performance, there needs to be evidence of poor performance, otherwise a jury may conclude your reason is pretext to discrimination.

On the issue of “reverse discrimination,” we know that “white” is a race and “male” is a gender, both protected by Title VII and equal to any other race or gender. Discrimination based on either or both is discrimination.

Karen Michael is an attorney and president of Richmond-based KarenMichael PLC and author of “Stay Hired.” She can be reached at stayhired@stayhired.net.

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