Nancy S. Shilepsky quoted in Massachusetts Lawyers Weekly article on “reverse discrimination queries”

August 26, 2019

Nancy S. Shilepsky, co-chair of the firm’s Employment Department, was quoted in a Massachusetts Lawyers Weekly article on August 22, 2019. The article, “In #MeToo era, some lawyers fielding more ‘reverse discrimination’ queries,” delves into a recent uptick in reverse discrimination claims, brought on in part by the #MeToo movement, in which historically advantaged populations feel “disadvantaged” when companies roll out new policies meant to level the playing field for all employees.

Read the full article at Massachusetts Lawyers Weekly (subscriber content).

From the article: 

“People are generally more aware now that they may have legal rights in employment, and because of that heightened awareness, they are looking at an adverse employment action and wondering if they have a potential claim,” said Boston employee-side attorney Nancy S. Shilepsky. “Reaching out to a lawyer to find out makes good sense.”

Certainly the #MeToo movement has raised awareness of the need for gender equality in the workplace, Shilepsky said.

“But for a lot of companies, the concern about inclusiveness and level playing fields has been part of their cultures for a while,” she noted. “Sometimes they get it right and sometimes they don’t, but there are legal ways to promote fairness and opportunity for all. Making room for one group by pushing out another is not legal.”

Shilepsky suggested that the number of employers trying to address such issues constructively has increased, at least in Massachusetts.

“These issues are being discussed more openly, although sometimes in ways that don’t conform to the law,” she said. “‘We need more women’ may be misunderstood to mean that it’s OK to discriminate in favor of women, but that is against the law.”

“When someone comes to me and says, ‘My employer favored my fill-in-the-blank colleague over me,’ I explain that that is just the beginning of the analysis,” Shilepsky said.

There is a difference between illegal discrimination and “feeling disadvantaged,” she explained. For example, if white men traditionally received “advantages” in a workplace, their employers’ efforts to create a level playing field for all workers may leave those who expected to benefit from “who you know” employment practices feeling disadvantaged.

“But the leveling of the playing field is not unlawful discrimination,” Shilepsky said.

The notion of giving people equal opportunities and making merit-based employment decisions is what it is supposed to be about — not switching around who gets treated unfairly, she added.

Shilepsky said a safe strategy for new employees is to “eat the meal you’re served,” at least until that person has earned a seat at the table. If someone comes in and doesn’t understand the company culture, he may run into headwinds.

For example, she said, organizations may be sticklers for the chain of command and apply that principle across the board.

“As courts have said, ‘bad management, unkind management and even unfair management is not necessarily illegal management,’” Shilepsky said. “Of course, if the rules are not uniformly applied, that’s a different story.”