Jottings By An Employer's Lawyer

Thursday, January 27, 2011

Kansas City Verdict - Another Successful "Reverse Discrimination" Claim


Earlier this month I commented that one trend we might see this year was more "reverse discrimination" claims. See, 2011 -- the Year of the Non-minority? The outcome of a suit in a Kansas City courtroom yesterday does not prove me right, but it certainly does nothing to prove me wrong.

Like many local governmental units, Kansas City faced with declining revenues dealt with the issue as is often the case by eliminating employees. In the 75 laid off were two, long service, white, female budget analysts, Jordan Griffin and Colleen Low. one in her early 50's, one in her early 60's. 

After they were laid off  they sued complaining that "younger employees or minorities with less experience and lower performance evaluations were kept on." Agreeing with their claims, the Jackson County state court jury awarded each $900,000 in punitive damages and compensatory damages of nearly $350,000 and $500,000 respectively. See, Two former workers win $2.6 million from KC.

Two things that can be drawn from the newspaper account of the story that will be all too familiar to those who try employment lawsuits.

First, the two plaintiffs both had "always received exemplary performance evaluations." And their boss had considered them "spectacular, fantastic employees." In this case those performance reviews may have been deserved, as were the comments, but anyone who has any significant experience in this area knows all too well of cases where such comments and reviews decidedly did NOT represent the true opinion of management that went into the decision making process.

Secondly, one of the things that likely offended the jury was the assertion that their manager had lied to them by telling them that they were not on the list. According to their lawyer:
He repeatedly and affirmatively lied to Jordan and Colleen. He wanted to lull Jordan Griffin and Colleen Low into a false sense of security.
While that could be true, my guess is that the manager had other more noble motivations. He testified that while he did tell them that they were not on the lay off list it was because:
  • the list hadn’t been finalized,
  • he was hoping they wouldn’t have to be on the list,
  • that they could find jobs elsewhere in city government, and
  • he was trying to protect the confidentiality of the list.
All of those reasons are certainly understandable, but it is also clear how actions that seem, even in hindsight to be reasonable, can play in the tinderbox of a court room.

And potentially underlying both of the lessons is the difficulty managers have in delivering bad news. That's one of the biggest reasons for erroneously inflated performance appraisals and why managers tell "white" lies in situations where there is at least a chance that the bad news won't have to be delivered.

I hasten to add I am by no means faulting these or any particular managers, delivering bad news is hard for most people. That and a thousand other reasons are why being a manager of people is one of the hardest jobs in America.

We should not be surprised that it sometimes leads to results such as this one. What is perhaps more amazing is how rarely it does.

Update: A Kansas City Business Journal article adds some additional information and does make it clear that this is the type of case I thought we might see more of this year. According to the article:
Jordan Griffin claimed that she applied to become Kansas City’s commissioner of revenue, a position that was vacant in 2006. Griffin alleged that the city would not consider her application or grant an interview because it hired an outside recruiter that specialized in diversity recruitment and that former City Manager Wayne Cauthen had a contract that provided financial incentives for minority hires.
See, Kansas City faces $2.66M discrimination verdict.

Trying to increase diversity, certainly a notable aspiration, and not discriminate on the basis of a protected category, both a noble aspiration and the law, is easy to talk about, but fraught with potential peril. No one ever said being an employer was easy.

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