Harris–Stowe State University (Harris–Stowe), located in the City of St. Louis, recently lost an employment discrimination case based on reverse discrimination (black on white) where the jury awarded over $5 million dollars in compensatory damages, punitive damages and attorney fees.
Normally, I write about cases that announce important new principles of law. Harris-Stowe is not that kind of case. Nevertheless, this case is extremely useful because it provides a ready-made checklist showing important issues that need to be considered before dismissing or taking other serious disciplinary action against an employee. The actions of Harris-Stove were so bad that the court made a special point of chastising the Board of the University.
“In a time where claims of discrimination are most often proven through circumstantial evidence due to the covert and subtle nature of discriminatory conduct, this case stands apart. Rarely have we seen such manifest and open evidence of racial discrimination.”
Before launching into a serious disciplinary action you need to be aware of the strengths and weaknesses of your case. Don’t launch unless you have a good case backed by the record; instead, consider a lesser form of discipline that fits the mold of progressive discipline, unless the actions are so egregious that immediate action is required and even in those situations consider suspending the employee until a full investigation is completed.
Hint, best way to avoid the mistakes of Harris-Stowe is to use a checklist and make sure your attorney or HR director has reviewed the file showing that consideration was given to the items on the checklist. A checklist allows you to weigh the strength and the weakness of an employment action, particularly from the standpoint of how the evidence could adversely affect the ability of the local government agency to defend the disciplinary action.
The Harris-Stowe case provides a backdrop for a good checklist based on the examination of the facts, which shows why the jury awarded the employee over $5 million dollars. In other words, we are going to look at the worst of the worst to see what we can learn from mistakes. I take no great enjoyment in making these comments in light of long and esteemed history of Harris-Stowe.
My purpose is to reflect on past mistakes so we can learn for the future. Following is a list of glaring mistakes that made the Harris-Stowe case a nightmare to defend.
Past Performance Ratings – Of course, always check to see how the employee performance was rated in the past. Obviously the performance of the employee at the time of the employment action is unsatisfactory. When past performance ratings are excellent this is a red flag requiring an explanation from the supervisors. Wilkins performance ratings were excellent from 2001 until almost to the day when the employment action was taken in 2010.
Bad Statements – Always look for bad statements in the work place by supervisors or fellow employees since these can have a tremendous impact on the outcome of the case. I do more than look; I literally comb the work environment because these statements can blow up in your face or your opponent destroying the ability to defend or the employment action. In the Harris-Stowe case Smith, the Dean of the Education Department, had repeatedly proclaimed her belief in “black power” prior to being appointed Dean. Despite an order from the court directing that Harris–Stowe protect emails some emails were deleted. These emails purportedly contained statements that the Board wanted to make the department “Blacker” at the expense of white employees leading to an instruction to the jury that the loss of these emails created a presumption that they contained information that was adverse to Harris–Stowe.
Follow Normal Procedures – Wilkins, the employee, terminated in Harris-Stowe, notified the president, vice-president, Dr. Smith, and the human resources director by email that her termination did not comply with Harris-Stowe policies and that she was contemplating legal action. Harris-Stowe policies required that this notification officials should be considered a complaint of race discrimination, which required that there had to be an investigation. There was no investigation as required by the policies of Harris-Stowe.
Reason Given For Termination Was Pretextual – The termination of Wilkins did not comport with Harris-Stowe existing policy on reducing its work force. Under the reduction-in-force policy, Harris–Stowe was required to terminate non-adjunct faculty by seniority. Contrary to its internal policies, Harris-Stowe officials terminated Wilkins over the less senior African-American instructors while adding teaching staff, which made the effort to reduce the budget deficit look nonsensical.
Failure to have a policy of progressive discipline; treating Wilkins with contempt while removing her from the Harris-Stowe campus (It looked like she was under arrest when she was removed by security from the campus); hiring new teachers despite the budget reductions when Harris-Stowe was engaged in a reduction of its workforce due to budget limitations; and failure to explain in any way why the Wilkins was terminated show why there was a large verdict. This list could go on and on.
The above analysis focuses on the major glaring errors and should not be considered a comprehensive list. You may want to use the following link in developing your own checklist. Consider also the following short check list.
Howard Wright © 2017