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Wipe out overt bias before it’s too late

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in Discrimination and Harassment,Human Resources

Once an employee shows a judge that there is direct evidence she was discriminated against because of her race, it’s too late to come up with much of a defense. That’s why it is crucial to wipe out obvious discrimination once and for all. Don’t ever let a supervisor’s overtly racist comments go unpunished.

Recent case: Esma, a black waitress and bartender at a casino, sought a promotion to management but was passed over. Esma sued after hearing from a former manager that the company might have nixed her promotion because of the color of her skin.

The former manager provided an affidavit that said the casino general manager would not let “a dark skinned black person handle any money,” and that the general manager and his wife several times said “they thought Esma was too black to do various tasks at the casino.”

The trial court dismissed the case, reasoning that Esma didn’t have any direct evidence of discrimination, so the casino’s explanation that it had hired a more qualified individual trumped Esma’s discrimination claim.

But the 5th Circuit Court of Appeals reversed. It said Esma did have direct evidence—a manager had openly said he didn’t want dark skinned blacks handling money. Also direct evidence: the comment that Esma was “too black” for some jobs.

The court noted that when an employee has direct evidence, the employer can’t just argue that a more qualified person got the job. It has to prove that it would have made the same decision even absent the open discrimination. Since Esma was also qualified for the job, that was a tough burden to meet. (Etienne v. Spanish Lake Truck and Casino Plaza, No. 14-30026, 5th Cir., 2015)

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