Has your organization lost a previous race discrimination lawsuit? Ouch! You can bet some of your employees filed away that information for future use.
However, you can take heart in a court’s recent decision that having previously lost a discrimination suit doesn’t constitute “proof” that your organization continues to discriminate—unless the new case deals with exactly the same type of alleged discrimination.
Recent case: A police department lost a lawsuit alleging that white male officers did not receive promotions, but female and black officers did. That’s when other white male officers jumped to the conclusion that just about any employment decision was tainted by pro-female and pro-black biases. When the department fired Robert Henry, a white police officer, for mishandling a black prisoner, he sued and alleged that the earlier lawsuit was direct evidence of the department’s bias.
But the 7th Circuit Court of Appeals disagreed and dismissed his case. First, it said the prior lawsuit might constitute some direct evidence that white officers faced promotion discrimination—but it was not direct evidence that white officers were more severely punished for mishandling prisoners.
Then the court looked at the specifics. Henry was caught on videotape hitting a prisoner and flexing his biceps at the camera. The clip ran on the local evening newscasts. The police chief investigated and discharged Henry for violating rules against mishandling prisoners. The court said that even if the bad publicity prompted the firing, that wasn’t reverse discrimination. Henry was unable to point to other officers of any race or gender who haven’t been fired after engaging in similar conduct. The court upheld the firing. (Henry v. Jones, City of Milwaukee, No. 06-3855, 7th Cir., 2007)
Final note: There are two ways to prove discrimination—with direct or indirect evidence. Direct evidence includes confessions that race motivated a decision or proof of prior discrimination. Indirect evidence requires proof of different, less favorable treatment.
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- Problem Solved: Real People … Real Leadership Solutions, August '09
- Document any slippage in employee performance to insulate against later discrimination claims
- Hang tough when there's absolutely no discrimination