November Legal Roundup: Poor Performance Overrides Edge in Experience

Here’s the latest on some employment-related cases that have gone before the courts:


Age Discrimination

Older white man cannot support age-, race- and sex-discrimination case.

Photo by Shutterstock.

A 55-year-old white male health-department microbiologist, with 20 years of service, was passed over for promotion in favor of a white female in her mid-20s. The decision maker was an Asian woman. The rejected employee filed a lawsuit alleging age and sex discrimination in the promotion, and that the supervisor was also racially biased.

He could not sustain his burden of proof. A plaintiff must either show direct evidence of overt bias or that he was more qualified than the person selected. There was no evidence of racially biased statements, and over time the supervisor had promoted both men and women of differing ages, all white.

In this specific promotion, the employer showed that the plaintiff had a record of previous disciplinary actions, poor evaluations and performance problems, while the younger woman had a “top performer” rating and no discipline or other negative factors. Though younger, she appeared to be validly better qualified for a promotion.

Hester v. Indiana State Department of Health (7th Cir., 2013)

Religion Discrimination

Righteous anger and dueling religious values.

Conflict between a “spiritual Christian” library assistant and an “orthodox Christian” library supervisor resulted in a case for discrimination and retaliation against a public-school district. The assistant declined her supervisor’s ongoing requests to pray together, attend bible studies and receive religious tracts at work. The assistant explained that she was spiritual, but not of the same denomination or belief system as the supervisor. The pressure continued and the assistant filed a religious harassment complaint with the school board.

Thereafter, the supervisor stated that she had a “righteous anger” toward the assistant, gave poor evaluations, and succeeded in nonrenewal of the assistant’s contract, after 10 years of good evaluations, praise and recommendations by other administrators.

The court found sufficient evidence for a case of retaliation under Title VII.

Scott v. Montgomery County School Board (W.D. Va. 2013)

Disability Discrimination

Facebook created awareness of disability.

A discharged employee filed an ADA case alleging failure to accommodate and discharge due to HIV. The company defended by claiming it had no awareness of any disability prior to the discharge.

The court was not persuaded. There was direct evidence that the employee sent a Facebook message to his supervisor about his preliminary HIV diagnosis. Then he sent Facebook messages to two supervisors when the HIV diagnosis was confirmed. He then texted one of the supervisors several days later about the diagnosis and conditions he might need for continuing work.

Given the repeated Facebook and text messages, the court rejected the company’s defenses as pretext.

Croy v. Blue Ridge Bread, Inc., d/b/a Panera Bread (W.D. Va. 2013)

Bob Gregg, a partner in Boardman & Clark LLP, shares his roundup of diversity-related legal issues. He can be reached atrgregg@boardmanclark.com.

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