You can preach your zero-tolerance policy on discrimination and retaliation until you’re blue in the face—and sometimes it still makes no difference. Occasionally a supervisor will say or do something stupid that gets the company dragged into court.
Perhaps it’s sheer oblivion. Or maybe it really is a secret antipathy toward members of a protected class. If so, that kind of bias can be extremely difficult to catch.
However, there are steps you can take to avoid liability. Ordinarily, if an employer simply rubber-stamps a biased supervisor’s discipline or discharge recommendations, it will be liable for that discrimination. But that’s not the case if the employer takes concrete steps to review all employment decisions before they are finalized. Such a review enables an employer to document a solid reason for deciding to act.
Recent case: Jerry Godby, who is white, worked as a facilities manager for insurance services provider Marsh USA until he was terminated during a companywide reduction in force. He had been Marsh’s highest-paid facilities manager at the time of the RIF.
Godby sued, alleging he had been terminated in retaliation for complaining to his supervisor. He believed the supervisor played favorites when assigning overtime work, steering extra hours to a white employee while denying overtime to black workers.
Godby claimed he had expressed his concerns to his immediate supervisor and told him he was going to report it to higher-ups if it didn’t stop. The supervisor then allegedly told Godby that he would not “be around long enough to see it or report it.”
Since he was terminated shortly after, Godby naturally assumed the supervisor had gone out of his way to make sure that Godby was included on the RIF list.
Marsh had a much different version of events. It acknowledged that the supervisor had recommended that Godby be terminated. But the company also explained that it had conducted its own review of which employees would lose their jobs. HR, company attorneys and other managers had all signed off on the reduction in force. Thus the company was able to document the specific reason Godby was picked: He was a high-wage earner and the reduction in force was based on the need to cut costs.
As to Godby’s allegations of overtime bias and retaliation, Marsh pointed out that its documents showed Godby hadn’t reported the troublesome supervisor.
The court said that under those circumstances, the company wasn’t liable—even if the supervisor had retaliated against Godby—because it wasn’t rubber-stamping the supervisor’s recommendation, but making an independent decision based on other facts. (Godby v. Marsh, USA, No. 08-15739, 11th Cir., 2009)
Final note: You may be curious how a white employee can sue over preference for another white employee. The fact is, as long as an employee is attempting to report discrimination, he or she does not have to be part of the same protected class as those who allegedly are targeted by that discrimination. That’s because trying to report possible violations of Title VII or other anti-discrimination and equal opportunity laws is a protected activity. Punishing someone for doing so is retaliation.
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