A recent Federal Appellate Court affirmed the lower court’s dismissal of a demoted employee’s racial discrimination and retaliatory claims against her employer and provided guidance to employers on how to avoid or win such cases. Bragg v. Munster Medical Research Foundation, Inc. No. 21-2913, decided January 17, 2023, (7th Circuit). After a newly hired employee completed a 90 day orientation program she claimed that the employer’s decision to employ her at a less skilled and lower paid position was the result of racial discrimination and retaliation. The trial court dismissed her case before trial and the Appellate Court affirmed. The Appellate Court found no error because the employer, including the employee’s three training supervisors, clearly and contemporarily documented the employee’s deficiencies and lack of ability to perform the duties of the higher skilled and better paid position that she sought. The court also found the employee’s claim that the employer’s well documented reports actually evidenced the employer’s intention to create a record for her demotion as a result of its alleged racial discrimination to be without merit. While the court recognized that the employee’s “claims of racial insensitivity are typical of the challenges Black women face in the workplace,” the employee failed to provide any evidence to support her claims or to overcome the employer’s well documented evaluations and record keeping.
The lesson for employers is to have established policies and procedures in place for periodic evaluations, reviews and assessments maintained in the usual course of its business for new employees and probation hires, and to abide by them. While initiating these steps only when an employer becomes concerned about or aware of the deficiencies of a specific employee may result in a claim that the employer singled out the particular employee and only began building a record for termination for some improper reason, like racial, religious or other prohibited discrimination or retaliation for the employee’s legally protected actions, making a written record to document and justify an employee’s dismissal or demotion is still better than having nothing at all if a discrimination or retaliation claim is filed
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