Lower-level bias can illegally taint firing decision

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in Employment Law,Firing,Hiring,Human Resources,Leaders & Managers,Management Training,Performance Reviews

When it comes to discrimination affecting your company's hiring and firing decisions, what you don't know can hurt you.

That's why it's important to reiterate this to your managers with hiring/firing authority: It's their job to make sure discrimination does not taint any part of the hiring and firing process, including performance reviews conducted by lower-level supervisors.

Courts typically look for biased actions by the "decision maker." But the following case shows that conceivably anyone who influences an employment decision, even if he doesn't have hiring or firing authority, could be labeled a decision maker in the eyes of the court.To apply your policies correctly, set up a clear employee- complaint procedure, and route all complaints through a few select contact people.

Recent case: Ethel Hill, a sheet-metal mechanic, complained that her supervisor made numerous derogatory comments about her sex and age, calling her a "troubled old lady" and a "damn woman." The supervisor had no authority to fire Hill, but he did criticize her work performance and recommended disciplinary action that ultimately led to her dismissal.

She sued, alleging the firing was in retaliation for complaining about the supervisor's discrimination.

A lower court said Hill had no claim because someone with formal decision-making authority didn't make the biased statements. But a federal appeals court disagreed and sided with Hill, saying that it's wrong to limit direct evidence of discrimination to the actions of formal decision-makers because it overlooks bias by subordinates "who lack formal authority but who nevertheless exercise substantial influence in employment decisions."

Bottom line: Drill all employees constantly on your anti-discrimination policy. With this ruling, six of the 11 circuits now agree that an employee can establish evidence of discrimination through the conduct of someone other than the person with true hiring/firing power. (Hill v. Lockheed Martin Logistics Management, No. 01-1359, 4th Cir., 2003)

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