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“Sex-Plus” Discrimination Equals Possible Liability, Part II

On Monday, we discussed the Shazor v. Prof’l Transit Mgmt., Ltd. case. The Sixth Circuit held that an African American woman had triable race and sex discrimination claims under Title VII even though she was replaced with a Hispanic female. In other words, in a “sex-plus” case such as Shazor’s, an employer is not permitted to undermine a black female’s prima facie case by showing that “white women and African American men received the same treatment” as the plaintiff.

Once the court found Shazor had established a prima facie case of discrimination, PTM argued that it had a legitimate, nondiscriminatory reason for firing Shazor based on the alleged lies she made.  The court ruled that Shazor raised a material factual dispute about whether this reason was pretextual (meaning, that the nondiscriminatory reason offered by PTM was really just given to cover up their true motives), and that the company could not avail itself of the “honest belief” doctrine because it failed to adequately investigate Shazor’s alleged lies.

There are several lessons to be learned from Shazor. First, discrimination claims can be based on an intersection of two or more protected categories.  For employers, this means that they should take precautions to ensure employment decisions are based on legitimate reasons – not discriminatory intentions..

Second, employment decisions should always be well-supported by reasonable investigation. Shazor’s supervisor, Tom Hock, spoke to only one person about Shazor’s alleged lies, and this single conversation did not establish sufficient facts about the truth (or lack of it) behind her statements. Had Hock conducted, and documented, a more thorough investigation, PTM may have been able to prove a legitimate, nondiscriminatory reason for firing Shazor.

Lastly, and this should really go without saying by now, but watch what you put in emails! Shazor successfully argued that the emails referring to her as a “helluva bitch” and a “prima donna” were really code for “angry black woman” or “uppity black woman.” Although workplace emails are increasingly replacing face-to-face conversations, management should never put something in writing that they would not want to be introduced as evidence in court. Keep employee-related discussions private and, better yet, never use derogatory or discriminatory language when referring to employees.

Shazor signifies that intersectional “sex-plus” claims are viable in the Sixth Circuit and that employers can never be too careful when it comes to making adverse employment decisions.

This article is intended as a summary of  state and federal law and does not constitute legal advice.

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