Was dormant policy enforceable or ethnic discrimination in the workplace?

by on January 10, 2009 · 0 Comment POSTED IN: HR Info Center

Ethnic discrimination at work and selective policy enforcement

“What did you put in your trunk?” HR manager Garth Millsaps asked production worker Brahim Aswan.

“It was a case of cereal,” cut in supervisor Sonny Williams, who was in Garth’s office as well.

“Let him answer, Sonny,” Garth said, looking at Brahim.

“Sure, a case of cereal,” Brahim said. “Everybody does it with the reject cases. You know, the ones with the wrong labels on the boxes, or boxes only half filled.”

“It’s against company policy,” Sonny said, glaring at Brahim. “I won’t close my eyes to it.”

Supervisor’s silence

“What!” Brahim exploded. “I’ve seen people taking reject cases out the back door right in front of you! You never said a thing.”

“I deny that,” Sonny said.

Garth held up a hand for silence. “I’m not sure there’s a policy that specifically mentions taking reject cases home,” he said. “But we do have an employee-discount purchase program for nonstandard products. And we do have a policy against theft, which is a firing offense.

“You don’t deny taking the cereal,” Garth went on. “So I have no choice. Michelle will prepare your final paycheck and your COBRA paperwork.”

“This is unfair,” Brahim shouted. “Nobody ever pays for reject product. Plus, I told Sonny two weeks ago I was tired of the other guys calling me ‘dirty Arab’ and ‘raghead.’ He’s getting me kicked out because he’s afraid I’ll sue. Well, I’m sure going to sue now.”

Brahim did sue, for ethnic discrimination in the workplace and retaliation.

Did he win?

The decision

Yes. A court refused to throw out Brahim’s ethnic discrimination lawsuit, leaving the company with a choice of reinstating him, settling, or taking a weak case to trial.

Brahim wasn’t the only one who claimed employees regularly appropriated product unfit for public sale. Three of his co-workers testified that over several years on the job, they’d seen many people take quantities of product home, and they’d done so themselves. Often, they said, this happened at meetings where Sonny, the supervisor, was present.

The court found it odd, and unconvincing, that the company would suddenly start enforcing a policy forbidding this behavior a few days after Brahim expressed unhappiness about ethnic discrimination.

Question of timing

If you think it’s time to crack the whip and enforce a previously ignored rule, the best time to act is not when someone has just broken it.

Courts may attribute all sorts of ulterior motives – including retaliation – to your legitimate attempt to get control of an undesirable situation.

Cite: Campos v. Shasta Beverages, No. 04-2482, D. Kan., 2/8/06. Fictionalized for dramatic effect

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