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Dec 4, 2015

By Eric B. Meyer

Can you eliminate discrimination claims by hiring minority replacements?

Yeah, no.

When a person claims that he wasn’t promoted because of his race, or terminated because of her gender, or brings some other claim of disparate treatment, that person must demonstrate several elements:

For example, in a failure-to-promote case, at a minimum, the plaintiff must establish four things:

  1. (S)he belongs to a protected group under Title VII;
  2. (S)he was qualified for the promotion;
  3. (S)he was not promoted; and,
  4. The employer promoted someone else.

To promote a minority, or not

In a recent federal court opinion (Edwards v. State of Oklahoma) , as a defense to a failure-to-promote claim, the employer argued that the fourth element requires a minority plaintiff to demonstrate that the company promoted a non-minority employee instead.

That argument has some superficial appeal. For example, consider a termination situation in which a company fired a woman and replaced her with a woman. That would suggest that gender was a not a motivating factor in the employment decision. But, then again, it’s notdispositive.

Here’s what an Oklahoma federal court had to say about that:

It would preclude suits by employers who hire and fire minority employees in an attempt to prevent them from vesting in employment benefits or developing a track record to qualify for promotion. It would also preclude a suit against an employer who terminates a woman it negatively perceives as a “feminist” and replaces her with a woman who is willing to be subordinate to her male co-workers or replaces an African-American with an African-American who is perceived to “know his place.” Although each of these situations involves wrongfully-motived terminations, under the rule advocated by the Defendants, the terminated employee would be unable to meet the prima facie burden. Such a result is unacceptable.”

Employer takeaway

Obviously, the easy solution here is this: Don’t let a protected-class characteristic motivate an employment decision.

But, at the other end of the spectrum, biased managers who replace a minority employee with another minority employee should avoid twisting their handlebar mustaches prematurely.

There may be a viable discrimination claim after all.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

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