Judges understand the difference between anand an illegal practice. They won’t hold you liable for all bad decisions—just the discriminatory ones.
Recent case: Terrell went to work cleaning trains for the Metropolitan Transportation Authority. MTA employees are probationary and at-will for one year. Almost immediately, Terrell’s boss started criticizing him for slipshod work, but zeroed in on Terrell’s habit of wearing headphones on the job. This earned him a low rating on his first evaluation. Eventually, Terrell was fired.
He sued, alleging race discrimination. He said others had worn headphones and weren’t criticized. However, he couldn’t recall their races.
The court tossed out the claim, reasoning that while the supervisor was perhaps unfair, there was no indication race was the underlying reason. (Gibbs v. Metropolitan Transportation Authority, No. 13-CV-1583, ED NY, 2014)