Loose cannon manager causes ethnic discrimination lawsuit

by on January 5, 2009 · 0 Comment POSTED IN: HR Info Center

An ‘adverse action audit’ could have prevented ethnic discrimination in the workplace lawsuit

The second-to-last thing an organization needs is a loose-cannon manager swapping his personal prejudices for intelligent business decisions.
The last thing an organization needs is an HR Director who continually reacts to situations but never sees the big picture. In this case, HR missed clue after clue that an ethnic discrimination in the workplace lawsuit was brewing, and the company paid the price.

‘Your accent is weird’

Sergio Fonseca was the only Guatemalan among a core of mostly Mexicans and a few whites employed at a food services warehouse. Soon after Don Peterson became Fonseca’s supervisor, the problems began.

“Your accent is real weird,” Peterson remarked to Fonseca one day.
Fonseca politely explained his Guatemalan ancestry and the distinctive quality of his accent.
Another time, Peterson mimicked Fonseca, pretending he couldn’t understand him, when actually he could.

Perhaps Fonseca wouldn’t have minded his boss’s gentle ribbing – had it stopped there.
Instead, the treatment escalated to a level of discrimination that resulted in the employer losing a lawsuit.

Being proactive prevents ethnic discrimination lawsuits

Worst of all, the warning signs were all there. Long before Fonseca filed a lawsuit for ethnic discrimination in the workplace, numerous instances of bias had actually been documented. In each instance, HR took reactive measures, fixing the immediate problem but ignoring the reason the problems were being created in the first place.

The day Fonseca learned his mother was dying he requested paid leave – to which he was entitled through a company policy. His leave request was denied.

Request Denied. Ethnic discrimination in the workplace or business necessity

Fonseca appealed Peterson’s decision and he won his appeal. During the arbitration process, which HR was part of, Fonseca showed how Peterson had approved such leave for non-Hispanic workers.
Soon after that, Peterson denied Fonseca overtime hours to which he was entitled through seniority.
Once again Fonseca appealed. He demonstrated a pattern of ethnic discrimination at work evident in Peterson’s selection of who got overtime and who didn’t. As a result, Fonseca was awarded the overtime hours he sought. HR helped make it happen.

Another time, Fonseca was operating a forklift when he accidentally toppled a stack of canned zucchini, damaging the product. Peterson tried suspending Fonseca and charging him for the damaged food. With HR’s help, Fonseca got the punishment reduced. In pleading his case he documented a number of incidents where non-Hispanic workers did even more accidental damage – yet weren’t disciplined.

Finally, Fonseca filed a lawsuit alleging a pattern of ethnic discrimination in the workplace.
The employer claimed it had done everything right: It had considered each of Fonseca’s complaints. And in each case it had reversed Peterson’s decision. Fonseca had been compensated for his bereavement leave. He’d been awarded overtime hours. And he’d had his punishment reduced for knocking over the zucchini.

Nonetheless, a court found in favor of Fonseca. In reaching its decision the court said in this case the employer’s obligation went further than merely reversing discriminatory decisions. It should have proactively identified the pattern and put a stop to it.

Conduct an adverse action audit

Do you have rogue managers at your organization who repeatedly take “adverse actions” against employees? Pay close attention. We know an HR executive at a large organization who created a spreadsheet that tracks the adverse employment actions taken by every manager and supervisor in the company. She color-codes the adverse actions into two groups: protected employees and nonprotected employees. Using the grid, she can spot discriminatory patterns and prevent unnecessary lawsuits.

Cite: Fonseca v. Sysco Food Services of Arizona, U.S. Court of Appeals, 9th Circuit, No. 03-15193, 7/6/04. HR 3.3

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