Here’s a way to guarantee a race discrimination case will go to a jury trial: Let a supervisor with an obvious racial bias participate in the decision to terminate an employee who belongs to the protected class the supervisor dislikes.
Even if you have a seemingly legitimate reason to terminate the employee, the supervisor’s involvement will taint the entire process, as one employer recently discovered.
This legal concept is sometimes referred to as the “cat’s paw” theory (see box). It works like this:
A higher-up whose fairness is beyond reproach is enlisted to make the final termination decision. Meanwhile, the supervisor wants to get rid of the employee for some illegal reason, based on his own prejudices. That supervisor can’t be open about his discrimination because then he would presumably not get what he wants—the termination of the person against whom he is biased. Instead, the supervisor comes up with a seemingly reasonable termination recommendation and accepts his recommendation. The discharge is thus tainted by the supervisor’s racism or other prejudice.
Recent case: William Bell, who is black, worked for Rochester Gas & Electric. He was suspended and ultimately fired for allegedly improperly accessing accounts.
However, one of his supervisors apparently told an HR representative that he wanted Bell fired because of his race. At least that’s what the rep later told the court when Bell sued. By then, the HR rep had left the company.
The supervisor had recommended Bell’s discharge, but the company said the actual decision came from higher up and had been based on the information that Bell had improperly accessed the accounts.
That didn’t matter to the 2nd Circuit Court of Appeals. It sent the case back to the trial court for a jury trial. The appeals court concluded that it was an open question whether race discrimination was really at work, making the stated discharge reason just a pretext for illegal discrimination. A jury will now decide if that was the case. (Bell v. Rochester Gas & Electric, No. 08-1999, 2nd Cir., 2009)
Final note: What should you do if you suspect a supervisor harbors racist views? You can obviously try training and other ways to enlighten the supervisor. However, since your company is ultimately responsible for what happens to employees, the only answer may be to terminate the supervisor. Certainly, anyone in the HR department who learns of a supervisor’s suspect views should alert higher-ups. Ignoring the problem won’t make it go away and may simply embolden the supervisor.
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