History + Pretext = Trial

By Bill Wright

A history of workplace racial imbalance might undermine your legitimate non-discriminatory reason for a promotion decision. In Ahmed v. Johnson, No. 13-1054 (1st Cir. May 21, 2014), the plaintiff argued he was passed over for promotion because of his race, national origin, or religion. A supervisor, who had recommended three other men for promotion, asserted he did it based on qualifications, but, in some respects, it looked like he recommended people he knew well. Consequently, his stated reliance on qualifications might well have been a pretext for some other motive – favoritism? cronyism? not necessarily illegal discrimination. To tip the balance, the court relied on evidence of past hiring and promotion decisions that “entirely excluded African-Americans and, perhaps, Muslims.” Given the evidence of pretext, plus the history, the court sent the case to trial.

Courts made the decision-makers here the victims of their circumstances, but only because there was evidence they mischaracterized their actual reasons for the promotion decisions. Play it straight.