Here’s how little it takes to land a good organization in the hottest of legal waters: One verified comment by a supervisor showing that he’s against promoting or hiring minority applicants may mean a costly class-action lawsuit.
The good news: You can often ferret out hidden discrimination with some simple statistical analysis. For example, compare the percentage of minority employees working under different supervisors or the percentage of minority employees each supervisor recommends for promotion.
Such number-crunching exercises can give enough clues about hidden bias for HR to start remedying the situation before a complaint leads to a lawsuit.
Recent case: Quinton Brown and other black employees at Nucor Steel filed suit, alleging the company was discriminating against black employees companywide. They asked the court for class-action status, seeking to represent all similarly situated black employees.
As direct evidence of discrimination, the employees told the court that the company regularly promoted less senior white employees into , sold items in the company gift shop that depicted both the company logo and the Confederate flag and allowed white employees to use racially offensive language.
The last piece of direct evidence was a supervisor’s statement that he would never promote a black employee.
The lower court refused to certify a class, but the 4th Circuit Court of Appeals reversed. It said the supervisor’s comments and the other direct evidence were enough to show that all black employees had a common discrimination claim.
In other words, if true, the evidence implicated that all black employees were being discriminated against. (Brown, et al., v. Nucor Steel, No. 08-1247, 4th Cir., 2009)
Final note: If your informal investigation makes you think there may be widespread discrimination in a department or division, get expert help. Don’t ignore the apparent problem.
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