- An African-American employee with a record of disruptive conduct (including at least one physical altercation), poor teamwork and returning late from breaks was unable to show that racially motivated disparate treatment was the reason she was denied a promotion (Luceus v. State of Rhode Island, No. 18-1377 (1st Cir. May 8, 2019)).
- The employee could not prove that the stated reason for her promotion denial — her conduct — was pretext for race discrimination, the 1st Circuit said; she also failed to identify similarly situated white employees who were treated more favorably by her employer.
- The employee did not dispute most of the employer's reports of her poor workplace behavior, and the disparate impact claim she was using to help support her disparate treatment claim also failed. Accordingly, the 1st U.S. Circuit Court of Appeals affirmed a district court's summary judgment ruling in favor of the employer on the disparate treatment claim, calling it "soundly granted."
The worker in this case may have had some indisputable performance issues, but it's important to remember that an employee need not be a star performer to bring a successful discrimination claim. The 4th U.S. Circuit Court of Appeals recently ruled that a fired African-American trash truck driver may have been discriminated against on the basis of his race, noting that he didn't need to show he was a "perfect or model" employee.
But when an adverse action — for example, a written warning, discharge or denial of a promotion — is warranted, good documentation can be an employer's best friend.
And while solid documentation is worth its weight in gold, poor documentation practices can undermine employers' credibility with judges and juries. Vague language can make it look like your managers aren't setting clear expectations, according to Allison West, principal at Employment Practices Specialists, who spoke at a recent Society for Human Resource Management Employment Law and Legislative Conference. She also said that catchphrases (such as "insubordination") are less effective than clear, unambiguous statements, such as "the employee left work early without a manager's approval, in violation of a workplace policy." Finally, emails are forever, so managers need to think about how those exchanges could appear to a jury someday.