Employment & Labor Insider

Last week, it was the University of Michigan. Now, it’s the University of Mississippi.

A federal judge in Mississippi ruled recently that a race discrimination lawsuit filed by a former employee of Ole Miss will go to trial. The only surprise here is that the University even thought it had a shot at summary judgment. (My guess is that this was a "desperation" motion.)

Here’s what happened.

The school was hiring an intervention specialist for a student substance abuse program. Apparently most of those served by the program were white, fratty kids.

Solo cup abuse?

Our plaintiff (we’ll call her Dolores), a Black female, was one of three candidates for the intervention specialist position. She alleged that during her job interview, her future boss (we’ll call her Natalie) told Dolores that she really hoped to have a white male in the position. Natalie, who like Dolores is a Black female, denies having said this, but read on.

Dolores got the job despite the fact that she was not a white male. Not long afterward, Natalie hired a white male (we’ll call him Rick) as Director of the program. That meant Dolores and her co-workers reported to Rick.

At some point, Dolores talked with Natalie about the fact that she was having difficulty relating to some of the students in the program. Natalie (again?) said that she’d preferred a white guy for Dolores’s role. Although Natalie denied saying this in Dolores's job interview, she admitted to having said it on this occasion. She claimed it was a joke, and even Dolores testified that Natalie said it in what might have been a joking manner.

Not long after that, Rick started to get complaints from students about Dolores, including an allegation that Dolores pinched a student twice. There were indications that both Natalie and Rick had doubts about the pinching allegation. Natalie consulted with Human Resources, and was told that Dolores was still probationary and that they could terminate her without cause and without any investigation. 

So Dolores was fired. She asked why, and no one gave her a reason. Later, they said that she was terminated because of the alleged pinching. Because Rick was qualified to do Dolores’s job as well as his own, he absorbed her duties, and then Dolores’s job was eliminated entirely.

At the time of her termination, Dolores had been employed only a few months.

"Gee, I wonder if she'll sue . . ."

Dolores, unsurprisingly, sued for race discrimination. To recap, it was undisputed that Natalie expressed her preference for a white guy – after the job interview, if not during. Then Natalie hired an actual white guy (Rick) to be Dolores’s boss. Both Natalie and Rick may have had doubts about the pinching allegations but didn’t ask Dolores for her side of the story. Then Dolores was fired over the pinching allegation (allegedly) but wasn’t told that was the reason. Then her job duties were taken over by Rick, the white guy.

Nope. Nothing to see here.

Five losing arguments

I know it will come as a shock, but the court denied the University’s motion for summary judgment. That doesn't mean the University loses the case. But it does mean that Dolores will get a jury trial on her discrimination claims.

Here were the University’s five losing arguments.

No. 1: “Well, sure, Dolores is accusing me of saying I preferred a white guy for her job, but it isn’t true! I never said that (in the interview)!”

According to Dolores, Natalie told her in the interview that she preferred to hire a white man for the position. Natalie denied saying it in the interview, and maybe that’s true. But this is what the courts call a “genuine issue of material fact.” When the parties disagree about a fact that could be important to the outcome of the case, the courts are generally not allowed to decide who is telling the truth. That’s what juries do. So this one is for the jury.

"Not looking good, is it?"

No. 2: “OK, OK, I did say I preferred a white guy when Dolores told me she was having a hard time relating to the students in the program. But that was just a joke! I didn’t mean it!”

Again, maybe so. Even Dolores testified that Natalie said it in a joking manner. But that’s not the kind of thing an employer should joke about. Was it one of those “jokes” that is really serious and passive-aggressive? ("You have the worst sense of humor of anyone I've ever met! What, you took offense at that? Geez, I'm kidding. Where's your sense of humor?")

One more thing for the jury to decide.

No. 3: “Besides, I am a Black female myself. I would never discriminate against another Black female!”

This is a common misconception. If you discriminate or express a preference based on race, sex, or other protected characteristic, it doesn’t matter that you happen to share the protected characteristic(s) of the alleged victim. Don't take my word for it. Check out the number of age discrimination lawsuits in which the alleged ageist comments are made by someone as old as the plaintiff, or maybe even older. (“Jimbo, my friend, it’s time we old-timers let the new generation take over the company, am I right? Go on and enjoy that condo in Boca Raton while you still have your health. I envy you.”)

"Seriously?"

No. 4: “But she pinched a student! That’s assault! And even if she didn’t do it, we honestly believed she did, and the good-faith honest belief rule applies here!”

The good-faith honest belief rule is a great one for employers. When it applies. But it didn’t apply here. First, it was undisputed that no one addressed the pinching allegations directly with Dolores, much less asked for her side of the story. Second, when they terminated Dolores, they didn’t tell her that she was being terminated for this reason. Third, Dolores denied the pinching allegations, and Natalie and Rick may have been skeptical, too. So much for “good-faith honest belief.”

No. 5: “Well, we couldn’t afford to keep her position! Yeah, that’s the ticket!”

The problem here is that they fired Dolores only a few months after hiring her (and, allegedly, after expressing a preference for a white guy). Then they reallocated her duties to a white guy (Rick). Then they eliminated her position. A jury will have to decide whether the economic explanation was legitimate.

"Jury trial it is."

On a happier note . . . This is my “Friday” post for the week because of the Christmas holiday. I wish a very merry Christmas to all of those who celebrate, and a very merry couple of days off to everyone else!