A manager has an open position. He will need to work closely with the new hire.
Alan applies for the job. The manager truly loathes him. I could say it softer but that is the reality.
Alan has all the requisite skill, education and experience. But the sound of Alan’s voice makes the manager’s skin crawl.
Based on his intense dislike for Alan, the manager does not want to interview him, let alone promote him. What do you do?
As human resource professionals, we all have had managers come to us indicating that they don’t want to promote (or want to terminate) someone simply because they dislike them intensely. Because this may offend our sense of fairness, we may be tempted to tell the manager that personal dislike is not a legitimate reason (and perhaps impliedly suggest they come back with something else).
However, “personal animus" is not necessarily an illegitimate reason to take adverse action. Similar to bullying, it is unlawful only if it relates to a protected group and that could include double standards, stereotypes, etc. related to a protected group.
But let’s assume the personal animus is based on something entirely “unprotected,” such as two employees competed for a job and the sore winner wants to terminate the loser. Or, the manager does not want to promote Alan because he finds his bragging of those whom he claims to know repulsive.
As stated explicitly by one court, “dislike of an individual, even if that individual is a member of a protected group, without more, does not amount to prohibited discrimination.”
Accordingly, if a manager indicates that he or she wants to deny a promotion to or terminate someone because of intense dislike for them, we need to be careful not to state reflexively that this is not a legitimate reason. It may be unfair but not necessarily unlawful.
Telling the manager that this would be unlawful is not only inaccurate but also potentially dangerous. If we tell a manager that personal dislike is not a legitimate reason, the manager may manufacture another reason. Our advice then becomes the catalyst for the pretext which is the basis upon which the employee may be able to challenge successfully what otherwise would have been a safer termination had the truth been told.
Instead, we need to scrub the articulated reason to make sure the animus is not tainted by conscious or unconscious bias. This involves asking directly for the basis for the dislike. What did the person do? Say? No do? Etc.
But let’s assume there is no evidence of overt or implicit bias In that case, it is extremely dangerous for us to come up with a reason other than dislike that makes us feel better. The only one who ultimately may feel better is the plaintiff’s attorney arguing pretext.
This blog should not be construed as legal advice, as pertaining to specific factual circumstances or as creating an attorney-client relationship.