Is this employment discrimination?


race discrimination wrongful termination

Courts and lawyers try to grapple with employment discrimination law through a series of frameworks and analytical tools. This leap-day case, Bulwer v. Mount Auburn Hospital, 473 Mass. 672 (2016), provides me the opportunity to get into the weeds a little bit as to these frameworks.

I will try to use as much non-legalese as possible, though invariably, I may lapse into it. Please forgive me in advance.

The case involves a man of African descent, Mr. Bernard Bulwer, suing his former employer, Mount Auburn Hospital, after being terminated from his job as a medical resident for what he alleged were discriminatory reasons.

Bulwer did not have direct evidence of this discrimination -- a statement or document that conclusively indicates discrimination. A smoking gun, if you will. The highest court in Massachusetts -- the Supreme Judicial Court -- understood this, however. Indeed, it noted that direct evidence is "rarely available" in employment discrimination cases.

What Bulwer did have is indirect, or circumstantial, evidence, from which other facts can be inferred.

Generally, in order to win a discrimination case, an employee must be able to show:

  1. that he or she is a member of a "protected class" -- based on race, sex, national origin, disability, etc.;

  2. that he or she was subjected to an "adverse employment action" -- terminated, not promoted, not hired, etc.;

  3. that the employer bore “discriminatory animus” in taking that action; and

  4. that that animus was the reason or cause for the action.

The Court here reiterated that an employment discrimination case can proceed to trial -- in other words, it won't be kicked out in advance, as can often be the case -- where the plaintiff provides solely indirect evidence of the last two elements above.

To be specific, a plaintiff can show that their employer gave a false reason or explanation for taking the adverse action. And that may be enough for a reasonable jury to infer that the employer's stated reason is pretext for employment discrimination.

In the world of Massachusetts employment law, how can illegal discrimination be proven? More specifically, how can it be inferred? And if you're an employee or an employer, what are the things you should be on the look-out for?

When Stories Start to Shift or Look Inconsistent

One way of raising inferences of discrimination is by demonstrating that the employer's stated reason for its taking adverse action -- terminating, not promoting, not hiring, etc. -- is false.

In this case, the Court noted the conflicting evidence as to Mount Auburn's alleged reason for terminating Bulwer. In his termination letter, for example, Mount Auburn suggested that Bulwer was deficient in analyzing clinical data and building effective therapeutic relationships, yet his file was also full of examples in which these skills were commended. (There were also reports in which some of these skills were criticized.)

When stories start to shift -- and particularly when an employer's stated reason for taking an adverse action starts to conflict with other evidence developed -- an inference of illegal discrimination can be drawn.

The lesson here is: pay attention to shifting stories or inconsistencies. It starts to look like pretext for discrimination.

Other "Similarly Situated" People Did Not Suffer the Same Fate

The Court next noted that there was evidence "that the plaintiff was treated differently from similarly situated interns who are not black."

For example, one person testified that two other interns who were not of the same racial background as the plaintiff but who had “similar issues” were, unlike Bulwer, “given opportunities to remediate or repeat rotations.”

Further, another doctor "described three separate instances of Caucasian doctors whose deficient performances she and other staff members noticed and brought to the attention of hospital administrators, but who were not subject to disciplinary action until months or years after the complaints were made — and then only because of pressure from patients and other hospitals."

When "similarly situated" individuals -- in similar roles, perhaps in similar departments, or having similar issues -- are treated differently than the plaintiff it certainly can give rise to an inference of discriminatory animus.

The lesson here, then, is: pay attention to how similarly situated individuals are treated.

Failing to Follow Proper Procedure

Failing to follow proper procedure -- as occurred here in terminating the plaintiff -- can also give rise to a reasonable interference of discrimination.

Here, the employer failed in at least four respects to follow its own procedures in terminating Bulwer (and, in addition to supporting the plaintiff's discrimination claim, also gave rise to a breach of employment contract claim). Watch for this.

The doorways

As I sometimes try to do, I point out the "doorways" -- those points in the case in which certain things coalesced and made the usually unfortunate-for-everyone-involved result more likely. I do this as a way of showing that if those same doorways were approached differently, the result may also have been different.

1. One obvious doorway is Mount Auburn's termination letter to Bulwer. The stated reasons reasons there were, upon review, in conflict with a lot of other evidence. This employer would have been far better served consulting an employment lawyer before drafting that letter, where the lawyer would review that employee's file, have a discussion with relevant individuals, and provide legal counseling and advice about how to navigate the situation. Instead, they ended up in litigation for almost eight years.

2. Another set of doorways were each occasion in which Bulwer was treated differently than others. Other doctors with "similar issues" were given opportunities to remedy prior situations though Bulwer was not. This sort of thing can create friction in the workplace -- and also provide evidence of employment discrimination.

3. And, lastly, Mount Auburn blew through a doorway when in at least four different ways they failed to follow their own procedures in terminating Bulwer. Such can be evidence of employment discrimination and is certainly pretty devastating to a separate breach of contract claim. Again, things could have gone differently if they consulted an employment lawyer for advice.

So, to review...

If you're an employee and you are starting to believe there may be discriminatory animus factoring in at work, keep alert if you see 1) shifting stories, 2) similarly situated individuals being treated differently, and/or 3) the employer failing to follow correct procedures.

If you're an employer and want to know how best to navigate potential discrimination in your workplace, pay attention to the same factors cropping up.

Whether employee or employer, contact me if you see these things cropping up at your work and want advice.

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