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Favoritism & Personal Bias Unfair but Legal

Bob Gregg, a partner in Boardman Law Firm, shares his roundup of diversity-related legal issues. He can be reached at rgregg@boardmanlawfirm.com.

Read more Legal Issues.

National-Origin Discrimination

Favoritism and personal animosity may be unfair but are not illegal. A Mexican-American employee filed a race and national-origin discrimination case due to denial of a promotion. He alleged that the supervisor had a bias against him and stacked the deck in favor of a non-Latino employee. The court did find evidence of favoritism toward the successful candidate. It also found that there was a poor working relationship between the plaintiff and the supervisor. However, it found no discrimination. There were three other rejected candidates who were not Latino and the deck was stacked against them too. The supervisor also had personal biases against at least one of the other people. So, the plaintiff was simply in the same situation as these others, and his race or national origin did not stand out as a factor. There are many sorts of unfairness that are not protected by law. Villalpando v. Salazar (10th Circuit, 2011).

Race Discrimination

Get it right the first time―shifting reasons are evidence of pretext. A Black employee made several verbal complaints to his supervisor about harassment by his Latino coworkers. He alleged that they engaged in racial taunts and epithets. When no action was taken, he made a written complaint to the supervisor. He was fired that day. He then filed a Title VII case on race, national origin and retaliation. The court found suspicious timing in the discharge. The main evidence for a decision against the employer was the shifting reasons given to defend the termination. The company first claimed the firing was because of violating policy against taking pictures of the workplace. This then changed to a layoff because of reduction in force. Finally, the company again changed its story and claimed the employee had agreed to resign. The court determined that the ever-changing reasons were evidence of pretext to cover up discrimination and retaliation. Loudermilk v. Best Pattet Co. (7th Circuit, 2011).

Read more about race-discrimination cases: ‘I Didn’t Get the Job Because I’m Black.’

Disability Discrimination

Nurse could do job with wheeled scooter and support boot. A nurse had foot surgery and had ongoing effects. She needed to use a wheeled scooter and wear a rigid support boot. The hospital removed her from clinic duties because of “safety concerns.” The nurse demonstrated that she could perform the essential functions of her job, but the hospital did not allow her to resume her duties and her employment was terminated. The court found sufficient grounds for a trial based on the evidence that the hospital refused to consider the accommodation of allowing her to work using the assistive devices. Sydnor v. Fairfax County (E.D., Virginia, 2011).

Employees without disabilities can challenge drug test as improper medical exam. The ADA prohibits medical examination of employees unless it is “job related and consistent with business necessity.” The ADA specifies that testing for illegal drugs is not a covered medical exam. However, in Bates, et al v. Dura Auto Systems (M.D., Tennessee, 2011), a manufacturer’s test also checked for a list of prescription medications it believed created safety concerns. Several employees tested positive for these legal medications that had been prescribed to them. The company gave them time to change medications to something not on the list. Several presented repeated medical information from their doctors that the dosage of medication was not a safety concern and would not impair their work. However, the company insisted they either change medications or be terminated, and then it fired those who did not or could not change. None of those fired were considered to have a disability under the definition of the ADA. However, the court ruled that they could proceed with an ADA suit. The testing provision of the law protects all employees and applicants from improper medical inquiry, not just those who can prove a disability. In the trial, the company will still have the opportunity to prove that its test and list of problem medications were “consistent with business necessity.”

Indefinite leave is not reasonable. A leave of absence is a form of accommodation under the ADA if it enables the employee to recuperate or receive treatment and then return to accomplish the job. A Federal Express courier was injured and unable to return to the job for a protracted period. He was unable to provide an estimated date of return or provide evidence that further leave would result in his reaching an ability to return to the job. He was terminated. The court granted summary judgment to the employer, holding that an indefinite, indeterminate leave is not reasonable under the ADA. Verrocchio v. Federal Express Corp. (N.D. NY, 2011).

Attorney’s accommodation request to work irregular hours from home may have been reasonable―or maybe not. The problem is that the employer did not engage in the required “interactive process” to study the issue. When a Labor Department legal counsel with a disability made the accommodation request, the department stated that the ability to work a regular, predictable schedule was an essential function of the job and rejected the request. The employee sued under the Rehabilitation Act. The court ruled for the employee, allowing the case to proceed to trial. The court indicated that the department reversed the required decision process. There must first be an exploration of whether the accommodation that is sought can reasonably meet the employer’s needs and the essential function requirements. A presumption about essential function should not preempt the interactive process. Schmidt v. Solis (D. D.C., 2011).

Read more about disability-discrimination cases.

4 Comments

  • “Favoritism and personal animosity may be unfair but are not illegal.” there seems to be something fishy if personal bias is allowable, especially when it involves more than one subordinate. Could it be that the problem is the superior since it’s personal, not professional.

  • Anonymous

    Personality conflicts can often become a problem and it is not always the supervisor at fault. That being said, treating people fairly should still be possible. A manager of people should and can take personalities out of the equation.
    How do you legislate “fair”? Should you?

  • I’m going through something where the supervisor is showing favoritism with someone of the her same race. She has a history of being a bigot and the unfair treatment was that the only other two employees who were of a different race (yes, both were the same race) were being excluded and one left due to the hostile work environment. The other filed an affirmative action and has been harassed ever since, with remarks in the office against her heritage and how if they were hiring for promotions it should be the race of the person who is being given favoritism by the supervisor who seems to be looking out for her because they are friends and of the same race. Then they hired another person who is of their same race and this person has since made remarks in the office against the only one of the different race. Is this just unfair but legal?

    • Anonymous

      The same is happening in my office as Dennis D. The only difference is the supervisor’s gender is male – employee female. What can be done to prevent issues such as this? Decisions are made then announced to the group of approx. 25. My group includes two diverse employees – One male and one femaile (me).

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