Transferred from a Nice Boss to a Horrible Boss: Is That Discrimination?

Michael ScottMiranda PriestlySome managers are like Michael Scott in “The Office,” allowing all sorts of shenanigans to slide by and never handing down any punishment (other than to Toby).

In comparison, other bosses are quick-trigger disciplinarians from the mold of Miranda Priestly (Devil Wears Prada) or Monty Burns (The Simpsons).

So what happens when an office suddenly encounters a seismic shift from a softie to a tough-guy boss? Employees who previously received shiny-happy reviews—or no feedback at all—may now face a barrage of criticism and verbal abuse. Some may end up fired.

On the legal side, do employees facing such whiplash discipline have any grounds for a lawsuit? The answer is maybe.

If employees can prove that the new increased scrutiny is based on one of their protected personal characteristics (age, race, sex, religion, etc.), a discrimination case is possible. But if the whip comes down simply because that’s the new supervisor’s management style, you’re likely in the clear for winning—but maybe not avoiding—a lawsuit.

Consider this recent example: Deborah, who is white, worked for many years at a Philadelphia utility, racking up satisfactory performance reviews. But when a new supervisor (a black male) arrived on the scene, she began suffering critiques and disparaging comments about her performance. She was placed on two performance improvement plans (PIPs), then ultimately fired.

Deborah sued, alleging sex discrimination and “ridicule/ harassment/psychological harassment.” But she didn’t have any evidence other than different reviews from different supervisors.

That wasn’t enough. The court said Deborah “presented no evidence raising a reasonable inference that any of (the company’s) alleged conduct was motivated by her race, gender or engagement in protected activities.”

The court said that “the mere fact that she received different reviews for different time periods from different Directors does not raise an inference of discrimination. The case was dismissed. (Nardella v. Philadelphia Gas Works, 3rd Cir.)

The lesson: In this case, the employer did everything right. It allowed the new boss to evaluate Deborah more critically than the previous supervisor, but also gave the employee a chance to turn her performance around. The employer then tracked her performance on the improvement plan and didn’t make a final decision until the plan ended.


Does Replacing a White Woman With Another White Woman Prevent a Sex-Bias Claim?

In this case, the employer also ended up hiring another white female to replace Deborah, a white woman. Although employers can’t choose a specific employee based on a protected characteristic to avoid litigation (that would perhaps discriminate against someone else), you can end up using the hire when defending yourself against discrimination.

As the court said, “her replacement by another person within the same protected classes does not preclude her claim as a matter of law, but it is one factor among many that the court appropriately considered in determining that the totality of the circumstances does not raise an inference of discrimination or retaliation.”