Step up to a new high-stakes HR role: Stamping out conspiracies to discriminate

Here’s another legal danger for HR to watch out for: The charge that a supervisor conspired to terminate employees belonging to a protected class.

Employees who can show that a supervisor and someone else involved in a termination decision conspired to terminate employees of a particular race, sex or other protected classification have a separate claim beyond the traditional employment law remedies.

That can mean huge jury awards far above those typically assessed in usual Title VII discrimination cases.

Recent case: Clyde Lochin, who is black, worked for Verizon Florida as a customer technician. In the 2½ years he worked for the company, he earned positive performance evaluations, two salary increases and two letters of commendation based on positive feedback from customers. He was also never late for work.

In other words, Lochin appeared to be a model employee.

All was not well, however. Lochin later testified that his supervisor refused to communicate with him at all, but did communicate with other employees who were white. Plus, Lochin was not assigned a work vehicle, while all his white co-workers had company cars.

One day, another Verizon employee overheard a conversation between Lochin’s boss and a union steward. Although the conversation was fragmentary and not very explicit, the co-worker interpreted it as an agreement that some employees would be fired.

Shortly after, Lochin was called into a meeting with his supervisor, who accused Lochin of violating a billing procedure. He gave Lochin no chance to explain or to fix the error. He was told not to speak with his black co-workers during the investigation into the incident. Two other black employees were also called in to address errors and also told not to discuss the matter with their black colleagues.

All three were fired, despite the fact that other white employees with billing errors were simply allowed to fix the mistakes.

Lochin subsequently sued for discrimination—and also added a conspiracy count. He alleged that his supervisor (representing Verizon) and his union steward had conspired to deprive him of his rights to be free from racial discrimination.

The court agreed that his conspiracy lawsuit could go forward. Florida law, it explained, defines a civil conspiracy as the agreement among two or more parties to commit an unlawful act. Discriminating against members of a protected class is an unlawful act under both federal and Florida employment laws. (Lochin v. Verizon Florida, et al., No. 09-CV-1535, MD FL, 2009)

HR review can stop biased practices, prevent lawsuits

The Lochin v. Verizon Florida case is a powerful reminder that HR can play a critical role in preventing litigation.

If a Verizon HR professional had reviewed these termination decisions, it would have been obvious that there was a risk that a race discrimination case could result.

By reviewing the past disciplinary history, it would have been easy to see that Lochin was not a problem employee. That should have triggered an inquiry into how other employees with a similar disciplinary history were punished for the same mistake.

With even the briefest bit of notice, HR could have intervened before the three black employees were summarily terminated.