Diversity in the Workplace and Specific Job Classifications Matters

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By:  Claudia D. Orr

 

Did you know that the composition of your workforce, or just a segment thereof, may tip against a court dismissing a discrimination claim?  Let’s review the Sixth Circuit Court of Appeal’s decision issued February 23, 2016 in Jackson v. VHS Detroit Receiving Hospital, Inc.

In 1998, Plaintiff Jackson began working as a mental health technician at Detroit Receiving Hospital’s Crisis Center. Throughout her employment Jackson received high ratings on her performance reviews.  On September 6, 2013, she assisted RN Christine Moore in discharging the wrong patient. Both RN Moore and Jackson failed to check the patient’s ID wrist band before the discharge. Fortunately, this patient, who had only arrived the night before complaining of depression and suicidal thoughts, returned on his own volition to the Crisis Center seven hours later. Both the RN and Jackson were discharged for their error. Jackson filed suit alleging discrimination based on her sex.

One method of proving discrimination claims under both state and federal civil rights laws is for the plaintiff to compare himself to a “similarly situated” employee who is not in the same protected status and who was treated more favorably in similar circumstances.  Here, Plaintiff Jackson compared herself to two male mental health technicians who she argued committed similar offenses and were not terminated. The district court for the Eastern District of Michigan dismissed her case finding that the violations committed by the two males were not sufficiently similar.

The Sixth Circuit Court of Appeals disagreed, finding there were sufficient similarities for the comparison. In fact, while the circumstances may have been somewhat different, each of the two male “comparables” had discharged the wrong patient and neither had been terminated for their offense.

While most of the opinion was devoted to comparing Jackson’s offense to her male comparables, the court also reviewed the composition of the workforce.  The employer argued that because the decision makers were female and the vast majority of the work force is female, there can be no inference that Jackson was discharged because of her sex.

However, the court disagreed noting that Jackson was the only female of the fourteen mental health technicians lending support to her argument that the Crisis Center preferred males in that particular position. Moreover, the Supreme Court had previously held that it is “unwise to presume as a matter of law that human beings of one definable group will not discriminate against other members of their group.” Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998). The Sixth Circuit found “this maxim especially true here, where the primary inference Jackson attempts to draw from the record is that Crisis Center management preferred males for the position of [mental health technician], perhaps ‘because they thought females could not physically handle unruly patients.’”

The clear message from this case is that it is important for human resources professionals to not only ensure diversity across the workforce, but in specific job classifications as well. Statistics can be used to defeat the employer’s motion for dismissal.

This article was written by Claudia D. Orr, who is Chair of the Legal Affairs Committee of Detroit SHRM, and an experienced labor/employment attorney at the Detroit office of Plunkett Cooney (a full service law firm and resource partner of Detroit SHRM).  She can be reached at corr@plunkettcooney.com or at (313) 983-4863.  http://www.plunkettcooney.com/people-105.html. 

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. March 2016.