Antidiscrimination Laws Protect Heterosexual White Men Too

The fictional female president on Netflix’s hit drama, House of Cards, Claire Underwood, once hopefully declared: “The reign of the middle-aged white man is over.”  David Duvall, former Senior Vice President of Marketing and Communications for Novant Health Inc, did not get President Underwood’s memo.  On October 26, 2021, a federal jury in the Western District of North Carolina awarded Mr. Duvall $10,000,000 in damages following the trial against Novant.

Termination without Cause | Duvall vs Novant Health, Inc.

Novant hired Mr. Duvall in 2013.  He worked out of Novant’s Charlotte office and was a “Tier II” executive in Novant’s “Executive and Leader” compensation plan.  Under Mr. Duvall’s compensation plan, upon five years of employment, he was entitled to 18 months of base pay and benefits plus a lump sum of 1.5 times his prior fiscal year bonus if he was ever terminated without cause.  Despite receiving excellent reviews every year, Novant abruptly terminated Mr. Duvall’s employment on July 30, 2018, just five days before his fifth anniversary with the Company.

Reverse Discrimination in Hiring Decisions

Following Mr. Duvall’s termination, Novant split his duties between two separate positions,  hiring a white female as Chief Communications Officer and a black female as leader of Marketing.  In a case of reverse discrimination, Mr. Duvall alleged that he was fired “without warning or cause as part of an intentional campaign to promote diversity in its management ranks; a campaign [Novant] boasted about publicly.”

A Pattern of Discriminatory Employment Practices

Mr. Duvall’s complaint also identified the following white men who were replaced by either a racial minority and/or female in a 12 to 18 month period:

• Novant’s Chief Legal Officer was replaced by a black male;
• The Medical Group President was replaced by a black female;
• The Chief Information Officer was replaced by a white female;
• The Patient Experience Officer was replaced by a white female; and
• The President of Haymarket Medical Center was replaced by a black male.

Mr. Duvall’s complaint recognized the value of achieving diversity in leadership but noted that “terminating high performing employees with no justification or purpose other than to achieve diversity constitutes an adverse employment action based on race and/or gender.”

What Virginia Employers Need to Know

Employers in Virginia should take heed.  By advancing diversity, equity, and inclusion initiatives, companies can inadvertently create reverse discrimination claims by high-performing employees like Mr. Duvall.  There are two takeaways for employers here: 1) If you are going to terminate someone with an employment agreement like Mr. Duvall, make sure that you actually have cause to get rid of them; 2) If you do not win on summary judgment, settle.  You do not want to put your Company’s fate in the unpredictable hands of a jury.

Broderick C. Dunn is a partner at Cook Craig & Francuzenko, PLLC.  His practice focuses on business and employment litigation.  Broderick frequently blogs and appears in print and television media concerning related topics.  Follow Broderick on Twitter @broderick_dunn and connect with him on LinkedIn.