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In discrimination cases, don’t bet on Round 1 knockout

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in Discrimination and Harassment,Human Resources,Leaders & Managers,Performance Reviews

Discrimination cases typically have two stages. First, the employee must show that he is a member of a protected class, was qualified for the job he held, suffered an adverse employment action and a similarly situated person not in the same protected class was treated more favorably.

In the second stage, the burden then shifts to the employer to come up with a nondiscriminatory reason for that decision. The burden then falls back on the employee to show that the stated reason was merely pretext for discrimination.

Some federal trial judges recently construed the “similarly situated” standard very restrictively, finding that there are no similarly situated individuals to whom the employee could compare himself. Then they dismissed their cases before the employers had to articulate any nondiscriminatory reasons.

Now, the 6th Circuit has signaled that lower courts have gone too far by dismissing cases too early.

Bottom line: Employers should be ready to back up all employment decisions with solid business reasons. Don’t expect a quick dismissal of any but the most frivolous cases.

Recent case: Willie Jackson, who is black, holds both a bachelor’s degree and an MBA in finance. He worked for Federal Express for over 15 years and was promoted to senior technical advisor in a work group made up of seven employees. The other six were white; none had a master’s degree.

When the company wanted to restructure Jackson’s division, managers prepared performance evaluations. Jackson’s supervisor was told to rate everyone on contributions to short- and long-term goals. Jackson earned the lowest score in the group. (It turns out that one reason for his low scores was that the supervisor knew the company would no longer need Jackson’s system analysis skills.) On the basis of the low score, FedEx terminated Jackson.

Jackson sued, alleging he had been treated worse than similarly situated white co-workers. The trial court threw out the case, reasoning that no one else in his group who got better reviews was similarly situated since their jobs were different.

The 6th Circuit Court of Appeals reversed, holding that such a rationale would mean that no employee would ever be able to get past stage one. Employers would be able to manipulate evaluations so their picks for termination inevitably got the lowest scores—and the boot. Jackson will get a trial. (Jackson v. FedEx, No. 06-5844, 6th Cir., 2008)

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