Reprinted from the July 15, 2006 issue of MANAGER’S LEGAL BULLETIN, a widely read employment law newsletter that communicates legal guidelines to managers through real-life dialogue and concrete examples. Click here to view a sample issue, get more information or sign up for a risk-free subscription.

Manager’s Behavior Leads To Implications Of Discrimination

Sometimes a manager’s behavior can be just as incriminating in a discrimination case as the alleged adverse employment action itself. What you say and how you react to a situation could make you look guilty in the eyes of a court.

EMPLOYEE IMPLICATES MANAGER

“How do you like the job so far?” Keisha Willis asked her co-worker, Stan Aronson. The two had been hired as sales assistants a couple months earlier.

“So far so good,” Aronson replied. “How about you?”

“The job itself is fine,” Willis responded, “but I think we deserve a lot more than the $25,000 a year they’re paying us.”

“$25,000?” Aronson repeated. He hesitated before telling her, “I was hired at $27,000.”

“How can that be?” a stunned Willis asked. “When I complained to Melinda about my salary in relation to the work we’re doing, she told me that all sales assistants started at $25,000. She even said that she wished she could offer us more!”

With that, Willis marched into manager Melinda Hicks’s office to confront her about the pay discrepancy.

MANAGER IMPLICATES SELF

“Melinda, you told me that all sales assistants start at $25,000 a year,” Willis stated accusatorily.

“They do,” Hicks responded.

“Then how come Stan Aronson is making $27,000?”

Hicks immediately became defensive. “You’ve been complaining about your salary since day one. Not that it’s any of your business, but Stan makes more because he had prior experience and does additional computer work.”

Willis was not completely satisfied with Hicks’s explanation. “The published job description for a sales assistant doesn’t even mention computer work. Is it possible for me to see a copy of Stan’s job description?”

By now, Hicks was furious. “No, you can’t see a copy of his job description! I told you the reason why Stan makes more money. I don’t owe you any further explanation.”

COURT IMPLICATES MANAGER

The once-pleasant relationship between Hicks and Willis quickly deteriorated after that exchange. Aronson even commented to Willis that he noticed Hicks had become cold and unfriendly toward her.

On top of that, Hicks fired Willis just a few short weeks later for “failure to maintain effective working relationships.” Willis, who was black, filed a lawsuit claiming race and sex discrimination and retaliation. She alleged that she had been fired for complaining that her salary was $2,000 a year less than her white, male counterpart.

At first, a district court dismissed her case, but a court of appeals resurrected it, ruling that Willis presented sufficient evidence from which a reasonable jury could find that Willis was paid less due to her race and/or sex and that Hicks’s stated reason for firing her was a mask for discrimination. There was evidence that Aronson had no additional computer duties; neither his job offer letter nor his published job description mentioned computer work, and Hicks didn’t mention the computer duties until Willis confronted her.

DISCRIMINATION INDICATIONS

The appeals court was quick to point out that Hicks’s actions, more so than the actual pay discrepancy, inferred discrimination. Here’s where the manager went wrong, along with what you should do to get it right.

• Hicks wasn’t honest with Willis. First, the manager lied about all sales assistants making the same salary. Then she lied about Aronson earning more money because he did additional computer work. The court determined that neither his job offer letter nor his job description mentioned the computer duties.
  
  Make sure all your employment decisions are based on legitimate, business-related reasons. If, in fact, Aronson had been responsible for additional computer work, the difference in pay might have been justified. Instead, Hicks’s lies only made her look guilty of discrimination.

• Hicks instantly became defensive and angry when confronted by Willis. The manager’s angry reaction when Willis confronted her about the pay differential provided another basis from which the court inferred that she was guilty of discrimination.
  
  Managers should foster an open-door environment in which employees feel comfortable raising work-related issues and discussing their problems and concerns.

• Hicks refused to show Willis the documents she requested. Hicks refused to show Willis the documents she requested because she was hiding or embarrassed about the real, discriminatory reasons behind the pay differential, said the appeals court.
  
  If you base your employment decisions on non-discriminatory reasons, you should have nothing to hide when an employee requests documentation. Your documents, including job descriptions and job offer letters, should be able to support your legitimate business decisions.

• Hicks treated Willis differently after Willis confronted her. The court held that a jury could reasonably infer from the manager’s changed disposition that the employee’s pay complaint ultimately caused Hicks to fire her.
  
  As a manager, you must maintain neutrality and not allow disagreements to affect the way you treat your employees.
  

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