- A lesbian electrician was unable to show that her employer, the city of Portland, Oregon, discriminated against her on the basis of her gender, sexual orientation or status as a veteran; there was also no retaliation after she filed a complaint with the state (Kowitz v. City of Portland, No. 19-35148 (9th Cir. March 6, 2020)).
- In the process of investigating the employee's complaints, HR interviewed 18 of her co-workers. They "voiced concerns" about the employee's behavior, according to a federal district court opinion, including allegations that she made "animal-like grunting noises while walking in circles" and threatened them with gun-like hand gestures. There were also several alleged instances of poor job performance, such as regularly taking a whole day to complete a two-hour task, as well as "insubordinate behavior" and dishonesty.
- On appeal, the 9th U.S. Circuit Court of Appeals upheld summary judgment in favor of the city because the employee had failed to raise any genuine issues of material fact.
Even when an employee's performance or behavior falls short and discipline is warranted, an employer can still face allegations of unfair treatment. The best defense is solid documentation and thorough, unbiased investigations of all complaints.
Lowe's, for example, recently defeated an employee's claims of disability and age bias by showing legitimate business reasons for the employee's transfer to a different store and investigations into his conduct. Similarly, the U.S. Forest Service came out on top when it was able to demonstrate that a worker's reassignment was due to budget cuts rather than bias.
While protected activity (such as making harassment or discrimination complaints to HR, the U.S. Equal Employment Opportunity Commission or a state agency) doesn't insulate employees from legitimate discipline, experts advise HR to be careful in this situation to avoid the appearance of retaliation or bias. This is particularly true when the protected activity occurs close in time to the discipline or termination.
Inconsistent treatment can help bolster an employee's claims of bias. In one recent case, for example, an African-American employee's retaliation claims were allowed to proceed because, in part, there was evidence that other, similarly situated co-workers had been treated better.
Managers should be carefully and regularly trained on the applicable anti-bias and retaliation laws, the importance of consistency, and when to bring in HR to help defuse potentially sensitive situations.