Should you worry every time you retain one employee and dismiss another who belongs to a different protected class? Probably not—as long as there’s no other reason to believe that the terminated employee’s protected status was the reason he was fired.
Recent case: Stephen James, who is black, worked at a Saturn dealership detailing cars. When an injury forced him to miss work for an extended period, the company hired another detailer, a white man, who apparently did a better job. When James was ready to work again, the dealership kept the white employee and terminated James.
James sued, alleging race discrimination. But with no evidence other than the difference in the race of the retained detailer, his claim was dismissed. (James v. Sutliff, No. 10-4742, 3rd Cir., 2012)
Final note: The 3rd Circuit Court of Appeals did hand James a partial victory on other grounds. James’ absence was due to knee surgery. In addition to bias, he claimed he was terminated because of that disability and for taking leave.
The trial court had refused to consider his disability discrimination claim because he hadn’t checked the box on his state discrimination complaint. However, James showed that a government mistake caused the mix-up, and he won the right to litigate his disability claim.
The dealership will now have to defend its decision to let the replacement detailer keep his job while terminating James. If James can show his disability was the underlying reason, he may prevail.