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Implicit bias occurs when individuals make judgments about people based on gender, race or other prohibited factors without even realizing they’re doing it.
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A decision-maker who was accused of racial bias against an Asian-American employee could not have discriminated on that basis because the decision-maker erroneously believed the employee was white, the 11th U.S. Circuit Court of Appeals ruled.
Dean Fagerstrom is employed by the Savannah-Chatham (Ga.) Metropolitan Police Department. In 2011, during a meeting to announce an opening in the rank of major, the chief of police, Willie Lovett, allegedly stated that he intended to appoint someone white to the position because there were already two black majors. Lovett allegedly made similar comments again during that meeting and in a subsequent meeting. Fagerstrom, who is the son of a white father and Japanese mother, identifies as “Asian” or “Asian-American.” He applied for the position. However, although qualified to be a major, Fagerstrom was not promoted. Instead, two other captains, both white, were promoted to the open major positions.
Fagerstrom filed suit, alleging that the promotions were illegally awarded to the other two candidates because they are white and he is not. During litigation, Lovett testified that, prior to the lawsuit, he believed Fagerstrom was white. Indeed, Fagerstrom had previously identified himself as white on personnel records. He later changed his identification to Asian/Asian-American. Lovett further testified that he did not choose Fagerstrom because he perceived Fagerstrom to be less trustworthy and loyal than the two candidates ultimately promoted to major.
The trial court dismissed Fagerstrom’s case against Lovett, finding that Lovett was entitled to qualified immunity from the claims. Fagerstrom appealed. The 11th Circuit affirmed the dismissal of the claims against Lovett on different grounds. The court held that Fagerstrom had shown no evidence that Lovett’s reasons for not promoting him were a pretext for race discrimination. Litigation had revealed nothing to contradict Lovett’s testimony that he thought Fagerstrom was white. The court stated, “[w]ithout knowledge of Fagerstrom’s Asian racial identity, Lovett cannot have acted with an intent to discriminate based on that identity.”
Fagerstrom v. City of Savannah, 11th Cir., No. 14-14643 (Sept. 24, 2015).
Professional Pointer: Care should be taken to maintain files regarding employees’ equal employment opportunity information, details of disabilities, accommodations, medical leave and the like separate from files that are available for review by supervisory personnel. When determining which details to share with supervisory employees, do so strictly on a need-to-know basis. Supervisory personnel cannot intend to discriminate based upon knowledge they do not have.
Amie M. Willis is a shareholder in the Atlanta office of Ogletree Deakins, a labor and employment law firm representing management.
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