There are lots of grey areas and questions we want to avoid when interviewing candidates or talking to our employees. You know what they are - protected health information, medical information, even hobbies that might give us a peek into a person's protected status such as religion. While trying to keep the list of rules straight might be a pain there is a proactive and defensive reason for avoiding those slippery slopes. You can't discriminate against what you don't know. That was the crux of a recent case decided by the 11th Circuit Court of Appeals (covering AL, GA, FL).
Despite the fact that a senior official announced that he wanted to fill a vacancy with a white person because there were already two blacks in the department, the employer prevailed when an Asian employee filed a lawsuit after he applied for the promotion and was not given the job. Why? The senior official did not know the employee's race. Said another way, he actually thought the employee was white. In fact, the employee had self-identified previously as white but later changed his self-identification to Asian (he was the son of a Swedish father and Japanese mother). The senior official was unaware of the revised self-identification. The court held, "Without knowledge of [the candidate's] Asian racial identity, the [senior official] cannot have acted with an intent to discriminate based on that identity."
A Word of Caution - Before you get feeling too comfy about this decision, remember the string of "Cat's Paw" cases we saw a few years ago? You may recall the fable. Well, life does imitate art. Pleading ignorance might not work when your employment decision is swayed by another who has a racial, ethnic or similar animus or bias. Take the case above. If the senior official had been the pawn of or manipulated by another official who knew the employee's race, did not want the employee to get the promotion because of his race and convinced the senior official to not hire him for some other reason, then the employee might have had a case.
Lessons Learned? I stick with my usual word of warning, "You can't discriminate against what you do not know." Ignorance is a good defense (and sometimes bliss). So is good documentation (yes, the dreaded "D" word). If you are making employment decisions in conjunction with others or based on others' feedback ask for documentation to support the various positions. Before a Director fires an employee or decides to not promote an employee as a result of poor performance reported by a manager, the Director should ask for documentation or supporting evidence of poor performance. Not because we want to build a culture of distrust but because we want to build a culture that is accountable for its actions and can demonstrate sound business practices.
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