A number of court cases have illustrated how employers can find themselves in trouble for comments written via email by managers or other decision-makers that indicate an employee’s protected status (e.g., sex, race, age, or taking qualified leave) played a role in the decision to fire them. But here we present a unique scenario that provides timeless lessons about direct evidence of discrimination—not based on what was said, but what was not said.
Employee Becomes a ‘Black Matriarch’
Emma Lacy, who is black, was a lawyer in the legal department of a big oil company. Her supervisors concluded that other black employees went to her for counsel and advice on work-related matters. In the words of one of Lacy’s immediate supervisors, she was becoming a black matriarch.
The supervisor believed that Lacy thought he was racist, and he was afraid she would sue if he addressed her poor performance. A fellow supervisor told him “not to have any confrontations with her about work” and to “let it ride” if he was dissatisfied with her performance. (The company’s rules provided that poor performers must be counseled so they could improve their performance.) Not knowing bad advice when he got it, Lacy’s supervisor proceeded to follow the other supervisor’s counsel. He gave Lacy undeserved high ratings on her performance reviews, and she received merit pay increases.
Well, the price of oil dropped, the company sought to save money, and—you guessed it—Lacy was terminated in a reduction in force because she was the lowest-ranked employee. A white male employee was also terminated for poor performance.
Lacy Sues for Race Discrimination
The oil company essentially said, “Look, nothing bad happened to Lacy. She got good reviews, and she got a raise. Sure, she got fired, but we fired a white guy, too. And we were not motivated by race. We were motivated by self-interest because we did not want to get her riled up and make her angry at us.”
The trial court bought those arguments, but the appeals court covering Texas did not. According to the appeals court, “[Lacy] presented direct evidence of discrimination. [A supervisor] testified that to avoid provoking a discrimination suit[,] he had told [Lacy’s] supervisors not to confront her about her work.”
Thus, Lacy’s supervisor did not confront her for one reason: She is black. The appeals court went on to say that it was irrelevant if good things came her way. Why? Because the decisions regarding her were “racial decisions.” The bottom line:
[The company] must bear the cost of its lost opportunity to determine whether Lacy might have remained one of the two “lowest ranked” [employees] had it made decisions not based on race. This [court] will not sterilize a seemingly objective decision to fire an employee when earlier discriminatory decisions have infected it.
Vaughn v. Edel and Texaco, 918 F.2d 517 (5th Cir., 1990).
Even though this decision was issued in 1990, I still see this train of thought today. Look, supervisors are hired to manage, and managing is sometimes unpleasant. To paraphrase a famous movie line, “This is the life they choose.”
By the way, whether an employee is a victim of discrimination is an individualized inquiry. In this case, the fact that a white employee was fired as well was not dispositive. Nor does it matter, for example, if 90 percent of the workforce is black. What matters is why an adverse action was taken against the employee.