A recent case from the local District Court, just affirmed by the Fourth Circuit (the opinion was by retired Justice O’Connor), emphasizes the difficulty of establishing discrimination in workplaces where the discrimination takes the form of “death by a thousand cuts.” A Haitian worker, Geraldine Lauture, alleged that she was disciplined more severely than white employees for her infractions, particularly after an altercation with a white worker. But the employer hospital showed that some white employees had been given the same discipline for the same infraction, and therefore a finding of discrimination was impossible. The District Court stated it this way: “a consideration of the whole record, and not simply of individual cases within it,” allowed the employer to show that certain white employees, who may not have been known to the plaintiff, were also disciplined with the same measures.
The Court further refused to engage in a factual inquiry whether the errors the hospital said the employee made were really made. The hospital “is not required to conclusively substantiate her poor performance, only that it reasonably believed her performance to be deserving of discipline.”
We often see employers papering the files of employees before terminating them. This is good practice, it forces employers to deliberate over their decisions, and ideally precludes discriminatory decisions on demotions, discipline and termination. On the flip side, it provides a safety hatch for biased supervisors. All they have to do is write up the employee for infractions, real or imagined, and they insulate themselves from charges of bias, as federal courts routinely shrink from investigating too deeply. With the recent Supreme Court decision on the “cat’s paw,” there is still an avenue to investigate the bias of the person providing the write-ups, but it is not enough to show that the allegations were untrue.