Last week, a federal appellate court allowed a white assistant manager to pursue claims of reverse race discrimination against a bank because the reasons that the bank offered to the court for firing the plaintiff did not jibe with the documentation in its own file. Oh, wait a minute, there was zero documentation in the file.
I smell some trouble for the employer and some good lessons for my business readers.
How does one prove reverse-race discrimination?
The 3 steps behind an unlawful employment decision
An employment decision is unlawful if a white employee can demonstrate that her race was “a motivating factor” for her firing, even if the employer was also motivated by other lawful factors. Generally, this involves three steps:
- The plaintiff must first make a prima facie case of racial discrimination. Namely, she (a) was a member of a protected group, (b) was meeting the legitimate expectations of her employer, (c) suffered an adverse employment action, and (d) that similarly situated employees, who are not members of the protected group were treated differently.
- If the employee can meet her initial burden, that burden this shifts to the employer to articulate a legitimate, non-discriminatory reason for firing the plaintiff. This is a rather low threshold. Most common reasons are poor performance or budget.
- If the employer provides a legitimate, non-discriminatory reason, the presumption of discrimination disappears. The plaintiff must then offer sufficient evidence to show that the employer’s reason is not true, but is instead a pretext for discrimination.
When documentation is untimely, or worse
Worst practices: untimely documentation, or no documentation at all.
One way that employers can really screw things up is by failing to timely document employee issue or just not document altogether.
In the case involving the white assistant manager, the defendant-bank claimed that it discharged the plaintiff on February 20, 2009, because of three incidents in which the plaintiff discussed race in the workplace. The bank’s position was that it did not tolerate employee discussions about race, include those that do not create a hostile work environment.
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The court, however, smelled pretext. Specifically, the court reasoned that the bank never expressed concern over any of the plaintiff’s conduct prior to a “climate survey” and investigation conducted on or around February 20, 2009, the day the plaintiff was fired. This notwithstanding that the bank was aware of each of the three “racial” occurrences well before February 20, 2009. The court could find no evidence that the bank ever warned or reprimanded the plaintiff for her conduct prior to February 20, 2009. Therefore, the court allowed the plaintiff to present her reverse race discrimination claims to a jury.
What employers should do
How about some best practices for employers?
- Don’t wait to document employee issues. Record them as they happen. Place a copy in the employee’s file.
- Discuss employee issues with your employees. Novel, huh? Open communication helps ensure that the same issues don’t crop up again.
- Don’t be afraid to discipline. Go with whatever is reasonably design to ensure that the problem ends. If you have a progressive discipline policy, go with that.
- Be consistent. Put another way, treat employees equally.
- Education and train. Not only do courts love it, it also helps your workplace. In instances where multiple employees are committing the same infraction, consider (re)training. In matters involving discrimination, especially allegations of egregious behavior, don’t wait for more than one harasser to surface. Nip issues in the bud, redistribute the anti-harassment policy and require that all employees and managers be retrained on it.
Eric Meyer will be leading a group of HR pros in a panel discussion on Social Media in the Workplace – Where is it Today, Where is it Going Tomorrow? at the TLNT Transform conference in Austin, TX Feb. 26-28, 2012. Click here for more information on this event.
This was originally published on Eric B. Meyer’s blog, The Employer Handbook.