'Old white guy' can move forward with workplace bias suit against AT&T

5 minute read

The company logo for AT&T is displayed on a screen on the floor at the New York Stock Exchange (NYSE) in New York, U.S., September 18, 2019. REUTERS/Brendan McDermid

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(Reuters) - Every company committed to diversifying its workforce should pay attention to Joseph DiBenedetto’s age, gender and race discrimination lawsuit against AT&T Services Inc, his former employer.

U.S. District Judge Mark Cohen of Atlanta on Thursday ruled that DiBenedetto’s case can move forward, adopting a May 19 report and recommendation by U.S. Magistrate Judge Regina Cannon as the opinion of the court. The magistrate refused to dismiss any of the discrimination claims in DiBenedetto’s complaint, despite AT&T’s arguments that the claims were either mutually exclusive or insufficiently specific and detailed.

Cannon concluded, in essence, that AT&T’s company-wide initiative to hire, support and promote employees who are not white men gave rise to plausible allegations of discrimination by a 58-year-old white man. The judge said AT&T’s intentions were “laudable in theory.” Diversity and inclusion, she said, are the whole point of federal civil rights law. But AT&T’s allegedly “rigid reliance on the company’s internal demographics,” Cannon wrote, plausibly implied — at this early stage of DiBenedetto’s case — that his bosses “unlawfully considered his race and gender when terminating him under the pretext of financial strain.”

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You can call it the paradox of the old white guy: Employees who have historically been entrenched in the majority are also entitled to protection under laws that were intended to assure equal treatment for women and racial minorities.

I’m using the “old white guy” phrase because it appears in DiBenedetto’s complaint. According to his lawyers at Legare, Attwood & Wolfe, DiBenedetto was a highly valued assistant vice president in AT&T’s property tax group, which was, in turn, part of the company’s finance department. DiBenedetto’s boss, Gary Johnson, who oversaw nine vice presidents, allegedly commented frequently on employees’ “runway” — an oblique reference, according to the complaint, to the remaining years of their careers.

The complaint recounts an incident, for instance, about Johnson telling DiBenedetto in 2020 that he expected to retire in a couple of years. DiBenedetto said he was interested in applying for his boss’ job. Johnson allegedly noted DiBenedetto’s short "runway." According to DiBenedetto, the boss said, “In these roles, you know, you've got to be able to adapt and move, and I'm not saying you can't, but a 58-year-old white guy, I don't know if that's going to happen.”

At around the same time that DiBenedetto allegedly received this discouraging news, AT&T was vigorously trying to diversify the finance department’s workforce, according to the complaint. DiBenedetto, who had worked for the company for about 20 years, alleged that his department appeared to be hiring and promoting more women and minorities “than would be expected in the absence of discrimination.”

Even those alleged efforts weren’t enough to meet corporate goals, according to the complaint. “We must focus more on attracting and retaining diverse employees throughout our organization, especially at our senior levels," a top-level finance department executive told employees in a department-wide 2020 email.

In the fall of 2020, according to DiBenedetto's complaint, AT&T announced job cuts in the tax department. The company attributed the cuts to the company’s financial performance, not to the job performance of particular employees. That explanation, according to DiBenedetto, was a pretext. AT&T itself later said its financial performance was fine. Meanwhile, the complaint alleged, of the 13 employees who were laid off from the tax department all were white and all were over the age of 50. Nine were men, DiBenedetto alleged.

AT&T said in its dismissal motion that those statistics merely reflected the demographics of the department, not discriminatory intent. “Reducing our workforce is a difficult decision that we don’t take lightly, and each instance is reviewed thoroughly to ensure there is no discrimination of any kind,” AT&T said in an email statement responding to my query about the case. “We dispute the allegations in this lawsuit and will fight them in court.”

AT&T’s dismissal brief insisted that DiBenedetto's complaint hadn't shown any animus toward white male employees in the company’s pursuit of diversity goals. The company’s lawyers at Kilpatrick Townsend & Stockton also argued that DiBenedetto could not simultaneously assert a claim of racial discrimination under the Civil Rights Act and age discrimination under the Age Discrimination of Employment Act because both laws require proof that the plaintiff would not have been injured but for the particular version of discrimination each law prohibits. Because DiBenedetto alleged both age and race discrimination, AT&T said, he could satisfy neither law’s causation requirement.

DiBenedetto’s lawyers responded that AT&T’s causation argument was “meritless to the point of bad faith,” in light of the U.S. Supreme Court’s 2020 decision in Bostock v. Clayton County, which said that in the context of a workplace discrimination case, many factors can simultaneously cause a discriminatory outcome. AT&T’s argument was also “deeply cynical,” DiBenedetto’s lawyers said. “Under the AT&T rule, racist decisions are illegal; sexist decisions are illegal; but racist, sexist decisions are just fine.”

The magistrate judge said the weight of authority backed DiBenedetto’s interpretation of causation requirements, but said the question wasn’t as clear-cut as his lawyers had argued. She also said she didn’t have to decide the question now because plaintiffs can assert multiple, inconsistent claims in their complaints.

I asked DiBenedetto counsel Steven Wolfe of Legare Attwood if DiBenedetto’s complaint presaged a rush of lawsuits by white male employees allegedly injured by corporate diversity programs. “Not in a categorical way,” he said. “Every case involves specific decisions about specific employees.” Wolfe said there’s nothing wrong with workplace diversity initiatives that are grounded in data and focus on training and awareness. But companies must remember the rights of all of their employees, he said.

“You have to be careful about how a policy that is formulated as an aspirational statement is applied,” Wolfe said. “Equal is equal.”

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Alison Frankel has covered high-stakes commercial litigation as a columnist for Reuters since 2011. A Dartmouth college graduate, she has worked as a journalist in New York covering the legal industry and the law for more than three decades. Before joining Reuters, she was a writer and editor at The American Lawyer. Frankel is the author of Double Eagle: The Epic Story of the World’s Most Valuable Coin.