Are you liable for boss bias outside work?

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in Discrimination and Harassment,Human Resources

Here’s a good reason to make sure your supervisors aren’t targeting some employees for poor treatment: If they boast about their attitude outside of work, those statements may be used against them—and the company.

Recent case: Carol was older than 60 when she was fired from her job as a dietary clerk for a hospital. She had successfully performed her job for years and got excellent reviews until a new supervisor took over.

After that, her performance was closely scrutinized. She received regular warnings and write-ups for dietary mistakes and failing to follow menu preparation rules. She was fired for one last alleged menu mistake.

She sued. During pretrial discovery, Carol’s attorneys located a co-worker friend of the supervisor, who testified that sometime after learning of Carol’s lawsuit, the supervisor confessed that she was worried about showing favoritism for younger workers. She allegedly stated over dinner at the friend’s house that “[w]e shouldn’t have lunch anymore or talk socially at work…. People are starting to notice I’m favoring the younger and pregnant ones.”

The court concluded that this statement—made after the supervisor knew she was being accused of age discrimination—was essentially an “admission against interest” because it might expose her to liability. Therefore, the statement could be used to show that she was biased against older workers.

The court said Carol’s case could go to trial. The statement can be used against both the supervisor and the employer to prove age discrimination. (Cheal v. El Camino Hospital, H036548, Court of Appeal of California, 6th Appellate District, 2014)

Final note: Warn supervisors that, once an employee files a complaint, they should never discuss anything related to the complaint with anyone other than HR or an attorney.

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