There is an old saying that “hindsight is always 20/20” but in the case of Bronson v. Henry Ford Health Sys., you don’t need perfect vision to spot the employer’s mistakes in a promotion decision – you can see them from a mile away.
Susan Bronson, a 42-year old Indian American female, worked at Henry Ford Health System (HFHS) in Michigan as a staff nurse. She applied for a promotion to Clinical Coordinator in November, 2013, but was turned down in favor of a White nurse.
Bronson eventually sued, claiming that she was discriminated against because of her race, and also subjected to retaliation after complaining about race discrimination. The employer filed a motion for summary judgment (early dismissal) which the court denied.
Mistake #1
HFHS defended their decision not to promote Bronson by arguing that she did not accept criticism well, failed to “take ownership,” did not possess leadership qualities and did not participate in unit activities. The successful applicant, on the other hand, was reputed by her peers to be a good leader.
Using subjective factors to make employment decisions can be problematic and subject to dispute unless more objective criteria are employed to define those factors. Identifying a lack of “ownership” or being a poor “leader” will be much more persuasive if those labels are accompanied by more specific details or actual examples of such behavior. In short, it is always best to “objectify” subjective impressions.
Mistake #2
The employer’s rationale for not promoting Bronson took a big hit when the judge noted that in Bronson’s 2012 performance review, her supervisor wrote that Bronson was a team player, volunteered for overtime if staffing was short, and promoted positive team spirit. Bronson was rated as a “4.0 – Exceeds Expectations.” In 2013, another supervisor also rated Bronson at “4.0 – Exceeds Expectations,” noting that Bronson was “sincere, courteous and friendly.”
The employer argued that these past evaluations were not relevant in determining the legitimacy of their current assessments of Bronson’s fitness for the job. The court scoffed at this suggestion, however, noting that the employer advanced no reasoning or court precedent whatsoever for such a conclusion.
In drawing conclusions about an employee’s suitability for a new assignment or a promotion, do your homework. Review the employee’s work record and what past supervisors and/or coworkers might have said about the individual. That’s not to say that you have to rely on a prior evaluation or are precluded from having a different opinion. After all, the employee’s work may have slipped or the previous supervisor may have had more relaxed standards. Nevertheless, a negative performance assessment on the heels of good reviews in the past will be viewed skeptically unless some proof is offered in the form of specific and objective factors.
Mistake #3
The judge also observed that the successful candidate did not actually meet the minimum qualifications for the job. This one is simple – if you are going to have minimum qualifications, make sure that the successful candidate actually possesses them.
Hiring someone whom you have already deemed unqualified could easily influence a judge or agency to believe that the rationale for not hiring qualified protected class applicants is a smokescreen for an illegal motivation. The chances of such a ruling increase if the justification for ignoring the minimum qualifications is vague, overly subjective or, as explained below, just plain weird.
Mistake #4
The employer proffered a most unique defense as to why the successful candidate did not meet the stated minimum qualifications for the position. They said that this was a mistake, that the candidate’s resume should never have been passed along for further consideration and that the employee responsible for the error had been disciplined. In other words, their decision to consider that candidate was an innocent mistake, not an act of intentional discrimination.
An innocent mistake can be a viable defense to a discrimination claim since the ultimate question is whether the claimant has been the victim of intentional discrimination. In this instance, however, the judge was quick to point out that the error in passing the resume on for further consideration still did not explain why the employer overlooked the lack of credentials and actually hired the candidate. Thus, putting the resume forward for consideration may have been an innocent mistake, but the decision to hire an unqualified applicant was not.
All in all, the Court ruled that Bronson had effectively raised legitimate questions of fact as to whether her race had improperly been considered in her failure to be promoted. As such, the employer’s motion to dismiss the discrimination claim before trial had to be denied.
At Last, the Employer Got One Right
In fairness, it should be pointed out that the employer did successfully persuade the judge to dismiss the retaliation claim. Bronson’s allegations of retaliation included being assigned extra work, receiving unfairly critical evaluations, not being assigned to leadership roles in her unit, and having her work unduly monitored and criticized.
The judge concluded that taken together, these assertions did not rise to the level of sufficiently adverse employment action to permit the retaliation claim to proceed to trial.
Bottom Line
This was a textbook example of how not to make a hiring or promotional decision. In all instances, it is advisable to have appropriate and provable criteria for the decision, to hold all candidates to the same standard for meeting the criteria and to make sure that the judgments made about each candidate are valid and supported by reliable evidence.
There may have been more but we counted at least four significant errors in the employer’s handling of this matter. Perhaps the fifth mistake was not finding a way to settle the case before it got this far.
Critical developments such as this will be the focus of the Felhaber Labor & Employment Seminar on October 28, 2016. You can view the seminar agenda and .access our online registration by clicking here.