Disclaimer: This is a completely fictional account, created to relieve the writer of the usual dry restrictions of technical writing, and to relieve you, the reader, of the misery of reading it. After all, employment disputes are all about people and their stories..
Discrimination: bet the odds or fill the shelves, that is the question.
Algis stocked the shelves and checked out customers at the local supermarket chain. Gordon wasn’t overly sophisticated in matters of social courtesy, but he did have a basic respect for all people, a trait taught to him by his Lithuanian mother, Lina. Lina immigrated here when she was a child and raised Algis as a single mother. Algis grew up with stories of how the men at her mother’s work harassed her. He wasn’t about to let that happen to the young women in the grocery store.
Gordon was Algis’s supervisor. Gordon was married, overweight, and gruff. He found himself quite charming, despite complaints about body odor. He had become a store supervisor just a year earlier. Algis had worked for the supermarket chain for nearly 15 years and had seen various supervisors come and go, but Gordon was unique. Gordon showed a clear preference for the young workers whom he teased and who he rewarded with better hours and promotions if they returned his attention. But some of the women resented Gordon’s extra attention. They complained to each other that Gordon’s “teasing” was often sexually offensive and seemed to become more sexually explicit over time. The women also resented that some of the women accompanying Gordon became “favourites” with him while being denied pay raises or promotions.
Algis watched all of this interaction between Gordon and the women from a distance. The women didn’t include him in their conversations about Gordon, but he could see for himself what Gordon was doing, and it reminded him of the men Lina had described at the dinner table. He felt the need to report Gordon’s behavior. Should he confront Gordon directly, he wondered. He decided to report Gordon to the store manager. The store manager, following company policy, took the matter to the Human Resources Division, who investigated and, predictably, found no sexual harassment, but did report some “inappropriate behavior” and gave Gordon a slap that entered his personal file as a “first warning”.
Discrimination in the words of Walter Scott.
“Oh, what a tangled web we weave when we first practiced to deceive!”
The HR investigator had promised Algis confidentiality, but revealed to Gordon that Algis was the accuser. Gordon for a while pretended not to know, and for several months “lay low” to avoid detection on his new mission to get rid of Algis. His break came when he found an expired product on the shelves that Algis hadn’t been able to remove or replace. Gordon prepared a lengthy “report” that included references to public health and the store’s reputation, and warned Algis that one more mistake would result in dismissal. A few weeks later, Gordon took the expired product from the stock room and late one night, when no one was looking, he removed the current tags and replaced them with the expired items. The next day, he did an inspection of the store with Algis and several other employees, Gordon “discovered” the expired product, blamed Algis, and proceeded to report the violation to his store manager, with a recommendation for dismissal.
The store manager then contacted the regional manager, who reviewed the facts and determined that the dismissal was justified, so he was fired. In the Company’s chain of command, the store supervisor could not terminate employees without the review and approval of the store manager, regional manager, and human resources manager. All three in the Algis case found cause to terminate.
Defenses Against Discrimination
So when Algis sued the Company for unlawful retaliation, the company raised a number of defenses, including:
- Algis was not a victim of retaliation because the people who made the decision were not the subject of their previous “hostile work environment” complaint and did not know about the alleged harassment or that Algis had complained.
- Algis was fired for a good cause.
- The long period of time between the complaint and the dismissal was in itself proof that the dismissal was not caused by retaliation.
The Company was so convinced that it could win these defenses that it filed a motion for summary judgment to have Algis’s case dismissed as a matter of law. But Algis’ attorney raised several cases that convinced the court to let the case go to jury trial:
Reeves v. Safeway Stores Inc. (2004) 121 Cal. App. 4th 95, 114; Dejung v. Upper cut (2008) 169 Cal. App. 4th 533 and Staub v. proctor hospital (2011) 562 US 411.
Algis maintained that these cases allowed his case to proceed on the premise that while Gordon was the only person motivated to retaliate, he influenced others with his false information. The court agreed, following the “cat’s paw” doctrine. That doctrine is basically that if there are good and bad actors in the termination decision process, the decision will be considered completely bad if the bad actor influenced the outcome.
Discrimination test and time
On the issue of timing, Algis’s attorney threw the gamut of cases before the court arguing that timing is sometimes, independently, sufficient proof that the firing was caused by a retaliatory motive. Of course, the shorter the time, the more likely the inference of causation, but there is no outer limit set by the cases. The US Supreme Court has explicitly held that an outside time limit is not necessary to support a finding of causation, but in the particular case then brought before it, it found that twenty weeks (5 months) was too much time. Clark County School District. v. breed, 532 US at 237-74. In Thomas v. City of Beaverton (9th Cir. 2004) 379 F.3d 802, 812, seven weeks did not preclude the determination of a causal link even without other evidence of causation. Alas, in this uncertainty, only this is certain: “Come what may, time and hour run through the hardest day.” [Shakespeare, Macbeth].
Consequences of discrimination
Algis survived the summary trial, and with even more fighting ahead, obtained a specific ruling from the jury that retaliation for his reporting of what he believed to be a “sexually hostile work environment” was a “substantial motivating factor.” at his dismissal. He helped a little when Algis’ attorney produced shocked video footage showing Gordon had made the “expired product” change the night before the store inspection. Algis’ lawyer received the time-stamped digital recording from one of the quieter clerks who had put up with Gordon’s antics for far too long. From “All’s Well That Ends Well”, he left this final quote: “Love all, trust a few, do no harm to any”.