Sometimes, it doesn’t take a law degree to know that an employer may have really screwed something up.

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I can often draw upon my years of experience as an employment lawyer to predict from reading the first paragraph of a federal court opinion how the court is going to decide the discrimination claim before it.

Let’s see what you think.

Here’s the first paragraph from a recent opinion from a Michigan federal court in which the plaintiff alleged race discrimination.

[The plaintiff]—formerly a nurse at [the defendant’s] Dearborn hospital—reported to her supervisor…that she overheard her patient tell someone on the phone, “I do not want that black bitch taking care of me.” Another nurse overheard the remark. [The supervisor] spoke to the patient. [The plaintiff] says she overheard the patient make a similar remark to [the supervisor]. Within moments, [the supervisor] reassigned [the plaintiff] and replaced her with a white nurse.

Now, tell me if you think the court is going to conclude that there are no material facts in dispute and grant the employer’s motion for summary judgment on the plaintiff’s race discrimination claim.

So, go ahead and raise your hand if you think the employer wins here.

No?

Yeah, no.

Direct evidence of discrimination.

The company argued that the patient’s racists comments could not be imputed to it. Ok, fair enough. The patient does not speak for the hospital. But, this ‘misplaced’ argument does not explain why the supervisor reassigned the plaintiff with a white nurse within mere moments after the supervisor knew about the patient’s remarks. That’s what we call direct evidence of race discrimination.

Direct evidence of discrimination includes “any statement or document which shows on its face that an improper criterion served as a basis—not necessarily the sole basis, but a basis—for the adverse employment action.” The timing alone would establish a nexus between the comment and the reassignment.

But, wayment.

Was reassignment a materially adverse employment action?

Yes, it was. The court noted that “an employer’s race-based assignment may, in and of itself, constitute a materially adverse employment action. ”

Motion for summary judgment denied. And we’re off to trial.

Takeaway.

Never acquiesce to the racist, sexist, or other discriminatory requests of a customer, client, patient or other third parties. Instead, if you learn about this type of behavior, treat as you would any other employee complaint; i.e.:

  • Take the complaint seriously;
  • Investigate; and
  • Respond in a way that is reasonably designed to end the complained-of discriminatory behavior (such as not doing business with that person anymore).

 

 

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“Doing What’s Right – Not Just What’s Legal”