Court Levels Large Verdict Against FedEx for Retaliation

​The U.S. District Court of the Southern District of Texas recently ordered FedEx to pay $366 million to a former employee who sued over racial discrimination and retaliation. It rejected the company's request to undo the jury's verdict. The company immediately appealed the court's decision on Feb. 3.

Background

In May 2021, Jennifer Harris, a Black former sales manager for FedEx in Texas, sued the shipping company for racial discrimination and retaliating against her for complaining about discrimination. The lawsuit claimed that FedEx violated federal law by hiring HR staff who were not qualified to uphold anti-discrimination policies, failing to adequately train its managers to follow laws prohibiting discrimination and retaliation, and failing to supervise its managers to ensure they complied with laws prohibiting discrimination and retaliation. The lawsuit said Harris was recognized as a high performer and successful sales manager. The lawsuit was brought under the Civil Rights Act of 1866, 42 U.S.C. Section 1981 and Title VII of the Civil Rights Act of 1964. Section 1981 prohibits private parties from refusing to enter into contracts because of race and, unlike Title VII, does not have a cap on damages, notes Fisher Phillips.

"FedEx was constantly changing Ms. Harris's goals or moving Ms. Harris's accounts around so that it would negatively affect Ms. Harris's sales," the lawsuit said. "When the discrimination began, FedEx artificially set Ms. Harris's [sales] quota too high based on a customer that was moved out of her district to another district."

Harris was promoted six times during her tenure and then was asked to take a demotion in 2019. A few days later, she reported race discrimination to HR. Afterward, her white supervisor removed some of her commissions and didn't assign a customer in her district to her. Harris again reported discrimination and retaliation to HR. The company conducted an investigation and fired Harris in 2000[SH1] .

The lawsuit said FedEx didn't fairly investigate Harris' report of race discrimination, because it didn't interview all the relevant witnesses or review all the relevant documents, such as performance evaluations. The lawsuit claimed the company didn't adequately keep records of complaints and didn't evaluate Harris the same as her peers when it disciplined and fired her.

After the trial, the jury rejected the racial discrimination claim but upheld the retaliation claim.

FedEx argued that it should get a new trial because Harris agreed in hiring documents to bring any employment-related claims within six months after they arose, and she filed her lawsuit more than six months after her termination.

Camille Diggs, a spokesperson for FedEx said, "We strongly disagree with the judgment entered, and we have filed our notice of appeal. We remain confident that we acted properly regarding Ms. Harris's termination."

Federal Law

Title VII forbids racial discrimination in hiring, firing, pay, job assignments, promotions, layoffs, training and employee benefits. Many states have similar laws against racial discrimination in the workplace.

Employers can be held liable if they don't make good-faith efforts to prevent and promptly correct discrimination in the workplace.

"Employers should have a comprehensive system for receiving and investigating complaints from employees, and importantly, processes in place to protect complainants from retaliation. All employees, but particularly supervisors and HR employees, should receive regular training on implicit and explicit bias, harassment and differential treatment to understand the breadth of conduct that may constitute discrimination," said Saba Bireda, an attorney with Sanford Heisler Sharp in Washington, D.C.

Biased or racist comments aren't the only evidence of workplace discrimination that courts take into account. "Courts have also found race discrimination where plaintiffs presented evidence that they were treated differently than employees of a different race," Bireda said. "This evidence has included records demonstrating that white employees with less seniority or qualifications were given preferential treatment or promotions over more senior and more qualified employees of a different race."

To stop discrimination from continuing, employers should "give employees confidence that [discrimination] complaints will be investigated, and if discrimination is found, immediately addressed. Collecting data on complaints, advancement of underrepresented groups, climate surveys, etc., [are] key to understanding whether discrimination may be present in the workplace," Bireda said.

Employers cannot retaliate against workers for reporting discrimination. As the U.S. Equal Employment Opportunity Commission notes, it is unlawful to retaliate against applicants or employees for:

• Filing or being a witness in an equal employment opportunity charge, complaint, investigation or lawsuit.
• Communicating with a supervisor or manager about employment discrimination, including harassment.
• Answering questions during an employer investigation of alleged harassment.
• Refusing to follow orders that would result in discrimination.
• Resisting sexual advances or intervening to protect others.
• Requesting accommodation for a disability or a religious practice.
• Asking managers or co-workers about salary information to uncover potentially discriminatory wages.