Believe it or not, you still have to say it: Managers can’t express racial preferences

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in Discrimination and Harassment,Human Resources

By now, you might think no manager would be so stupid as to openly state their reluctance to hire someone of a particular race. Believe it or not, it still happens. When it does, that’s when expensive and time-consuming litigation begins.

That’s why you must remind all managers and supervisors about the organization’s commitment to a discrimination-free workplace. At the first inkling that someone in management isn’t following the letter and spirit of that commitment, fix the problem.

Recent case: Kimberly, who is black, applied for a job as an assistant manager at Azalea Point apartments. Most residents are students at a nearby university. According to the woman Kimberly was to replace, a manager wondered aloud whether Kimberly was black.

The outgoing assistant manager said she believed Kimberly might indeed be black. That’s when the manager allegedly stated that she did not think the company would want to hire a black person for the job.

Somehow word got back to Kim­­berly, who filed an EEOC complaint. She followed up with a lawsuit alleging race discrimination.

The lower court initially dismissed her case, but she appealed. The 5th Circuit Court of Appeals reversed the decision, reinstated the lawsuit and ordered a new trial.

When the case was again taken up, the lower court again dismissed it. Azalea Point successfully argued that it would not have hired Kimberly under any circumstances after discovering that she might have overstated some of her qualifications on her résumé. That, the court concluded, meant that even if the manager’s comments were direct evidence of discrimination, she still couldn’t sue because she was essentially unqualified for the job.

Kimberly again appealed the lower court’s decision. The EEOC filed a brief with the 5th Circuit, arguing that Kimberly’s qualifications for the position were irrelevant to the apparent blatant screening out of all black candidates, qualified or not.

The 5th Circuit agreed and sent the case back a second time. Kim­­berly will now try to persuade a jury that the manager’s comment amounted to direct evidence of discrimination. If the jury agrees, the employer’s only argument will be over how much it owes Kimberly in damages and whether those damages can include lost wages. (Johnson v. Maestri Mur­­rell Property Man­­age­­ment, No. 12-31175, 5th Cir., 2014)

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