The latest from Work Matters
| Back to basic on the defense |
| Here are some nuggets for employers when defending discrimination claims, courtesy of the 5th U.S. Circuit Court of Appeals' Feb. 4 decision in Goring v. Board of Supervisors of Louisiana State University and Agricultural and Mechanical College . The court sketched out the facts: A professor is denied tenure, because she files her application two months late. She claims race discrimination. She timely applies the following year and gets tenure. However, after that, LSU undertakes a "post-tenure" review of her performance based on student complaints on her teaching skills. She claims retaliation for her earlier complaint to the university for its failure to grant tenure. The trial court dismisses both claims on summary judgment, and the 5th Circuit affirms. Why? On the discrimination claim, she did offer evidence that nonminority applicants submitted untimely applications that were considered. But, as the 5th Circuit noted, "[T]hese other instances involved merely de minimis variations from the deadline that are inapposite to Goring's extremely late application." Thus, no discrimination. What about the retaliation claim ? Yes, something adverse happened to her after she engaged in protected activity. But the test is not whether something happened to her that that she did like. Instead, as the court noted, for an employment action to be considered objectively adverse, it must be harmful to the point that it would dissuade a reasonable employee from making or supporting a discrimination complaint. The test is not met here, because, as the 5th Circuit noted, "[A] reasonable employee would not expect to be insulated from review of her questionable job performance simply because she filed a prior complaint of discrimination." I like this case. It talks about the basics — the blocking and tackling that it takes to mount a successful defense. Never forget the basics. |
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