Sometimes, it’s best to just come clean. Even the best HR pros make mistakes when promoting or hiring employees. When that happens, and another employee sues, alleging that the hiring or promotion process was tainted by discrimination, it may be a good idea to admit that mistake to the court or the EEOC.
Here’s why: Courts have ruled that employers can use a mistake as a legitimate reason for denying the employee who didn’t get the job or promotion if they didn’t know about the error at the time.
As the following case shows, confession may be good for the soul … and for the defense.
Recent case: Carolyn Upshaw, who is black, worked for Ford. The company had a strict promotion program based on performance ratings. Ford’s system included seven levels, ranging from “Outstanding” down to “Unsatisfactory.” “Excellent Plus” was the level just below “Outstanding,” followed by “Excellent.” Only those rated “Excellent Plus” or “Outstanding” earned promotions.
Upshaw was ranked “Excellent” for several years and wasn’t promoted. She sued, alleging race and sex discrimination because several white males and a black male with the same “Excellent” rating were promoted while she was not. She claimed Ford had deviated from its promotion policies because it did not want to promote black females.
HR then reviewed its records and concluded that promoting the men had been a mistake. The HR professional in charge of the promotions had relied on a subordinate’s records when recommending the promotions and didn’t realize that the men were only ranked as “Excellent.” Ford then told the court that it had mistakenly promoted the men and had not done so to discriminate.
The court concluded that Ford’s “mistake in considering and awarding a promotion to one employee over another constitutes a legitimate nondiscriminatory reason” for not promoting Upshaw. In other words, as long as the company made a genuine mistake, the promotions weren’t proof that it discriminated. (Upshaw v. Ford Motor Company, No. 08-3246, 6th Cir., 2009)
Final note: Ford isn’t quite off the hook in this case just yet. While it didn’t discriminate against Upshaw when it promoted the others, she does get a day in court on her retaliation claim.
Upshaw alleges that Ford punished her after she complained about her lost promotion opportunities. During discovery, her attorneys unearthed e-mails between members of the HR team that seemed to imply Ford was looking for a way to get rid of her because she filed so many complaints.
One of the e-mails said, “almost daily people are investigating her complaints.” Other evidence indicated that HR devoted considerable time to Upshaw, to the point that “her nitpicking” required most of two HR employees’ time. Comments like those, reasoned the court, could lead a jury to conclude the company wanted to get rid of her because she complained about discrimination.
Remember, you can win the underlying discrimination case and still lose on retaliation.
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