Thursday, September 24, 2009

Discrimination in the air

Consider the following comments relating to the promotion of female officers within a police department:

  • The chief will never have a female on the command staff.
  • None of you females will ever go anywhere, and other negative statements about women in the department.
  • Women do not belong in the police force.
  • Accusing a female employee of “bitching” when lodging complaints.

On first blush, these comments would appear to support a claim of sex discrimination. But, consider that these comments were all made by non-decision makers, and that the Chief, who was not alleged to have taken part in any of these comments, had the sole discretion to hire, fire, and promote. If only the Chief could make personnel decisions, then only his comments should be relevant to a discrimination claim. In Risch v. Royal Oak Police Dep’t (6th Cir. 9/23/09) [PDF], the 6th Circuit disagrees with me in sending the case back to the district court for a trial on the employee’s sex discrimination claim.

In finding that there was a triable jury issue, the majority relied on the “discriminatory atmosphere” in the department:

The statements in this case evidence a discriminatory atmosphere in the Department in which male officers frequently made derogatory or discriminatory remarks about female officers. Two of the comments were made by sergeants who were members of the sixteen-person command staff, which serves as the managerial arm of the Department. Discriminatory statements made by individuals occupying managerial positions can be particularly probative of a discriminatory workplace culture….

For my money, the dissent has the better side of the argument as to whether an “atmosphere” can support a discrimination claim:

To be sure, sexist comments by other officers may have greater relevance if Risch were alleging sexual harassment, but she is not; rather, she alleges an unlawful discrete act – denial of a promotion based upon sex. To impute allegedly discriminatory comments and conduct by non-decision making employees within the Department to Chief Quisenberry and conclude that discriminatory animus may have infected his denial of Risch’s request for a promotion requires an inference upon inference – untethered to any proper evidentiary foundation.

Do comments such as those made in the Risch case belong in the workplace? Clearly, the answer is no. However, discrimination cannot exist in the air. It has to have a connection to the actual challenged decision. Without this nexus, we are opening our courts to a broad range of cases that will be decided on emotion and prejudice, not on facts bearing on the employment decision itself.

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