Will Hiring a Minority Get You Out of a Discrimination Claim?

By Eric B. Meyer

Can you eliminate discrimination claims by hiring minority replacements?

Yeah, no.

When a person claims that he wasn’t promoted because of his race, or terminated because of her gender, or brings some other claim of disparate treatment, that person must demonstrate several elements:

For example, in a failure-to-promote case, at a minimum, the plaintiff must establish four things:

  1. (S)he belongs to a protected group under Title VII;
  2. (S)he was qualified for the promotion;
  3. (S)he was not promoted; and,
  4. The employer promoted someone else.

To promote a minority, or not

In a recent federal court opinion (Edwards v. State of Oklahoma) , as a defense to a failure-to-promote claim, the employer argued that the fourth element requires a minority plaintiff to demonstrate that the company promoted a non-minority employee instead.

That argument has some superficial appeal. For example, consider a termination situation in which a company fired a woman and replaced her with a woman. That would suggest that gender was a not a motivating factor in the employment decision. But, then again, it’s notdispositive.

Here’s what an Oklahoma federal court had to say about that:

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It would preclude suits by employers who hire and fire minority employees in an attempt to prevent them from vesting in employment benefits or developing a track record to qualify for promotion. It would also preclude a suit against an employer who terminates a woman it negatively perceives as a “feminist” and replaces her with a woman who is willing to be subordinate to her male co-workers or replaces an African-American with an African-American who is perceived to “know his place.” Although each of these situations involves wrongfully-motived terminations, under the rule advocated by the Defendants, the terminated employee would be unable to meet the prima facie burden. Such a result is unacceptable.”

Employer takeaway

Obviously, the easy solution here is this: Don’t let a protected-class characteristic motivate an employment decision.

But, at the other end of the spectrum, biased managers who replace a minority employee with another minority employee should avoid twisting their handlebar mustaches prematurely.

There may be a viable discrimination claim after all.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (www.TheEmployerHandbook.com), which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.

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