When upperrubber-stamps an employment decision made by a supervisor who discriminates, the employer is liable for the discrimination. But if higher-ups independently review the situation before ratifying the decision, the employer isn’t bound by its discriminating subordinate’s wrongdoing.
Recent case: Nidal Othman is a naturalized U.S. citizen from Jordan who worked as a part-time police officer. He was twice passed over for a full-time position and thought the reason was a supervisor’s anti-Muslim prejudice. As examples of bias, he pointed to having been asked if he knew Osama bin Laden and being told he must be on Jihad.
But the supervisor with the attitude only made recommendations. Higher-ups then looked at the personnel file and made an independent judgment. In Othman’s case, they said they didn’t pick him because a citizen had complained that Othman had called him a “lying weasel.” In addition, Othman had another job that limited his ability to work rotating police shifts.
That was good enough for the 8th Circuit Court of Appeals to conclude the decision wasn’t tainted. Othman’s case was dismissed. (Othman v. City of Country Club Hills, No. 11-1142, 8th Cir., 2012)
Final note: Make sure managers articulate their reasons for hiring one candidate over another. No one will remember the reasons two or three years down the line without something to refresh their memories. Have hiring managers submit a written summary of the process to HR.
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