Employment Law Daily Saying that ‘minority numbers’ were low was direct evidence of reverse bias in worker's layoff
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Friday, February 5, 2016

Saying that ‘minority numbers’ were low was direct evidence of reverse bias in worker's layoff

By Brandi O. Brown, J.D. A white construction worker, who allegedly asked why he was laid off and was told by his project superintendent that the "minority numbers" were not "right" and he had a lower percentage of "minorities on this job" than he was supposed to have, presented direct evidence of race discrimination, ruled the Seventh Circuit, reversing a district court judgment. "[P]uzzled" by the district court's contrary conclusion, the appeals court explained that the fact that the statement was made in direct response to the employee's inquiry about his lay-off made it clear that it was in response to that decision, rather than a decision not to rehire him (Deets v. Massman Construction Co., February 3, 2016, Williams, A.). Under the terms of a contract awarded by the Missouri Department of Transportation to the defendants, a joint venture of three construction companies formed to bid on a bridge project, the venture was required to make a good faith effort to meet certain federally-mandated minority participant goals. The contract also required the employer to adopt equal opportunity policies and an affirmative action plan. Additionally, the employer entered into a collective bargaining agreement that required it to hire operators for the project from two local union branches. Under the CBA, workers acquired seniority on machines based on how long they worked on the machine and lost it if it was shut down for a week or longer. Concern over "minority numbers." In May 2012, the employee was hired to work as an oiler on one of the cranes being used on the project. In June, he was assigned to work on a crane that he stayed with until the next month. When it became apparent that the crane was about to go out of service, he was asked by the project superintendent to fill in for an oiler on another crane. His prior crane went out of service and he continued to work on the other crane until its oiler was set to return. The day before the other oiler’s return, the superintendent told the employee that he was being laid off. When he asked why, the superintendent allegedly responded "[m]y minority numbers aren’t right. I’m supposed to have 13.9 percent minorities on this job and I’ve only got 8 percent." When he collected his paycheck later that day, another superintendent allegedly said he was "sorry to hear about this minority thing." Moreover, another crane operator swore in an affidavit that the project superintendent told him the employee would be terminated “because there was an insufficient number of non-white workers at the Worksite." Although the employee contended that he was told originally that he would be able to return to his old crane when it went back into service, the day after his termination a minority oiler was hired to work on that crane instead. In discovery, however, the project superintendent claimed the employee was laid off because there was no work available. He also said the employee had no claim to work on his old crane and that he decided to request a minority worker because he had discovered that for the prior three weeks the employer had been out of compliance with mandates. Lawsuit. The employee filed suit for race discrimination under Title VII and Section 1981 and the defendants moved for summary judgment. Granting the motion, the court concluded that the statement about "minority numbers" was not direct evidence. It also determined that the employee's circumstantial evidence was unpersuasive. The employee appealed, arguing that the district court had erred as a matter of law. Direct evidence. The appeals court agreed. It explained that the district court erred when it determined that the superintendent's statement was not direct evidence of discrimination. Explaining that no inference was required to determine that the employee "was laid off because he was not a minority," the court also opined that the fact that "race was the factor that led to" his layoff was "clear on the face of" the superintendent's statement. Although a jury might credit the superintendent's denial that he made that statement, credibility determinations could not be made at summary judgment. The appeals court explained that it was "puzzled by" the lower court's conclusion that the statement related to the decision not to rehire the employee, rather than the decision to terminate his employment. The statement was made at the time the superintendent told the employee that he was being laid off, the court explained, and was made in direct response to the employee's question about the basis of that decision. The appeals court was "similarly puzzled" by the employer's arguments that the motivation behind the layoff was immaterial because the employee was not entitled to work on his prior crane because he had lost seniority on it. The fact that the employee was "not entitled to that position" did not permit the employer to lay him off because of his race. After all, Title VII applies to at-will employment. Finally, the appeals court agreed that the lower court erred when it failed to address the affidavit of the other crane worker, which, if true, provided additional direct evidence. Circumstantial evidence too. Furthermore, the lower court erred by finding insufficient circumstantial evidence to allow a reasonable juror to conclude the employee was laid off because of race. In addition to the statements by the two superintendents, there was evidence that the employee was fired by the project superintendent when he was aware that the employer was out of compliance. Moreover, a racial minority was hired to work the employee's crane the day after he was terminated and there was evidence that the superintendent likely knew the crane would be back in service the next day. The appeals court reversed the judgment of the district court and remanded.

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