Fired Worker Advances Race-Bias Claim

By Alexander I. Castelli December 5, 2018
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​A former employee could proceed on a claim that her employer treated her differently from other similarly situated employees on account of race when the employer decided to fire her, according to a federal district court.

The plaintiff, who is black, was employed with an agency overseen by the Kansas Department of Children and Families. The plaintiff was first employed from January 2014 to May 2014. When she reapplied to the agency in 2015, she was required to produce a written performance evaluation from a previous employer even though the agency never had required any other applicant to produce such an evaluation. The agency had few black employees, and most new hires were white.

After the plaintiff was rehired, her direct supervisor informed her that the agency had a daily quota for the number of applications it must process. However, the supervisor did not require the plaintiff or any other employee to process a certain number of applications each day.

Two weeks after the plaintiff began processing applications, her supervisor recommended to agency officials that they fire the plaintiff because, according to the supervisor, her work was subpar. The plaintiff's employment was terminated. Notably, other employees processed fewer applications than the plaintiff, but the agency did not fire those workers. Moreover, the agency was not meeting its daily application quota.

Following her termination, the plaintiff sued the agency officials in their individual and official capacities, claiming, among other things, that the agency officials violated Title VII of the Civil Rights Act of 1964 by discriminating against her during the hiring process and when she was fired.

The agency argued that the plaintiff did not suffer an adverse employment action under Title VII on the hiring claim because she was ultimately employed once she produced the written performance evaluation. The court explained that an adverse employment action requires evidence that the employer refused to hire an applicant or otherwise caused some significant change in an employee's employment status. The court dismissed the claim because the plaintiff did not show that having to secure the evaluation affected her job benefits or future employment opportunities.

As for the plaintiff's claim that she was discriminated against when she was discharged, the court noted that although the plaintiff did not claim that the lower-performing employees were white, she did claim that the agency had few black employees and most new hires were white.

[SHRM members-only toolkit: Involuntary Termination of Employment in the United States]

The court refused to dismiss the claim, explaining that if the plaintiff could provide evidence that there were white employees who processed fewer applications than her yet still retained their jobs, a reasonable jury could conclude that the agency officials treated similarly situated employees differently from her on account of race.

Fuller v. State of Kansas, Department of Children & Families, D. Kan., No. 2:16-cv-02415-DDC-JPO (Sept. 13, 2018).

Professional Pointer: Employers should subject all similarly situated employees to the same standards when deciding to terminate. This practice may help avoid discrimination claims if the standards that form the basis for termination are uniformly applied to all similarly situated employees.

Alexander I. Castelli is an attorney with Shawe Rosenthal LLP, the Worklaw® Network member firm in Baltimore.

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