Discrimination Where Discriminator and Victim Are in the Same Protected Class

In employment discrimination cases, defendants sometimes argue, in effect, that unlawful discrimination can not have occurred, since the alleged victim and the alleged discriminator/harasser are in the same “protected class.”

The law is to the contrary. For example, in Poliard v. Saintilus Day Care Center, Inc., 11-CV-5174, 2013 WL 1346238, at *4 (E.D.N.Y.,2013), the court noted (albeit in a footnote):

The fact that plaintiff’s supervisor is also Haitian does not preclude an inference of discriminatory intent. See. e.g., Wiltshire v. Dhanraj, 421 F.Supp.2d 544, 554 n. 8 (E.D.N.Y.2005) (“[T]he court rejects the notion that a person cannot, as a matter of law, discriminate against other individuals of the same ethnic group … Nothing precludes an individual from discriminating against a group of which he is also a member.” (internal quotations omitted)) Bryant v. Begin Manage Program, 281 F.Supp.2d 561, 570 (E.D.N.Y.2003) (“[T]he fact that Bryant’s supervisor was black does not place Bryant’s race discrimination claim outside the scope of Title VII.”).

Furthermore, the Supreme Court has observed, in Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998), that the court has “rejected any conclusive presumption that an employer will not discriminate against members of his own race.”  In that case, the court held that Title VII, which prohibits discrimination “because of … sex”, also prohibits same-sex sexual harassment.

In sum, there is ample precedent for combating the (curiously) continued argument that one may not suffer discrimination at the hands of someone of their own sex, race, national origin, etc.