Employment Law Daily Told to be ‘more Indian,’ less ‘emotional,’ FedEx manager’s sex, national origin bias claims revived
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Friday, July 29, 2016

Told to be ‘more Indian,’ less ‘emotional,’ FedEx manager’s sex, national origin bias claims revived

By Joy P. Waltemath, J.D. Vacating summary judgment for FedEx in an unpublished opinion, the Seventh Circuit found plenty of evidence from which a jury could have found that the failure to promote a female operations manager of Indian descent was motivated by sex discrimination, national origin discrimination, or both. She presented evidence that her hiring manager told her, when she asked how she could become more promotable, to "be more Indian"—and whether that was South Asian Indian or American Indian, it merely shifted the national origin stereotyping from one group to another. She also had evidence he told her she was "too emotional" and "overly aggressive," both comments supporting an inference of sex discrimination, especially because the hiring manager had never promoted a woman during his six years as managing director of the Chicago Metro District (Hussain v. Federal Express Corp., July 26, 2016, per curiam). Senior manager position. The operations manager worked at FedEx for almost 15 years before she sought the promotion to the senior-manager position. When a position opened up, the hiring manager appointed another man as acting senior manager and then solicited applications for that job. HR suggested he interview only the incumbent senior manager who applied, plus the other four with the highest performance review scores; she was tied for third. But he interviewed all nine applicants in front of a panel he selected (two of whom reported directly to him); she ranked fourth based on "consensus scores" from the panel. He hired the acting senior manager, who was ranked second based on consensus scores and whose performance appraisal ranking was significantly lower than hers. The hiring manager also said he considered other factors in making his decision, including interpersonal skills, his own observations, and "fit" with other senior managers. More Indian; less emotional and aggressive. When he invited those not selected to get feedback on how to improve, she accepted. He told her, based on her performance at an earlier meeting, that she was "overly aggressive" in criticizing others, too emotional, and had inappropriate facial expressions. He also told her to "be more Indian," and when she replied "I am Indian," he advised her to "be more like an American Indian"—"stoic" and "expressionless." She filed an internal complaint; FedEx admonished the hiring manager for his lack of sensitivity and also recommended changes to the way hiring panels were composed. And FedEx suggested she could be helped in "improving her interpersonal skills." Dissatisfied, she filed a Title VII suit, but the district court found she had no evidence to support a finding that bias motivated the hiring manager; plus, since she received a lower interview score than three of the other applicants, she was not qualified. National origin. To the Seventh Circuit, evidence that the hiring manager told her she should become "more Indian" or more "stoic like an American Indian" compelled two reasonable and equally problematic interpretations. Either a jury could conclude that in order to be promoted, the operations manager needed to embody a trait stereotypically associated with a national origin—American Indian—different from hers, or that the hiring manager wanted her to reflect stereotypical features he envisioned in a person of Indian descent—e.g., she needed to be "more Indian." Either way, the court found it to be evidence of impermissible bias sufficient to avoid summary judgment, finding it "hard to imagine a blunter application of national-origin stereotyping" than his advice to "be more Indian." Even if a jury believed his clarification (that he meant American Indian, not South Asian Indian), it still reflected bias. Sex discrimination. As for sex discrimination, there was enough evidence here too to avoid summary judgment. Comments that the operations manager was "overly aggressive," "too emotional," and showed too much facial expression suggested that a trier of fact could conclude she was not promoted because of her sex. The court considered the context as well: The HR manager who was present at the earlier meeting from which her performance was being criticized found her behavior appropriate, and her most recent performance reviews portrayed her leadership and ability to manage her direct reports as "outstanding." Then there was the evidence of the hiring manager’s "troubling pattern of promoting only men to senior management," said the Seventh Circuit. He never promoted a woman to a position of senior manager during his time as managing director of the Chicago Metro District. When he retired (several years after this incident) none of the dozen or so senior managers reporting to him was a woman. He had previously been written up for transferring management responsibilities away from a female to a male senior manager so that the male could receive a promotion. When he later tried to demote that female, he was overruled and written up again. Lower consensus score. FedEx claimed that notwithstanding this evidence, its legitimate, nondiscriminatory reason for not promoting the Indian woman was her lower "consensus" score, determined by the entire panel. And if the committee had been "untainted by the bias of one of its members," that might have held sway. But record evidence suggested the hiring manager did not rely solely on the "consensus" scores; he relied on subjective factors (including his observations and assessment of "fit") that he evaluated in his sole discretion. Plus, two of his direct subordinates were on the panel, which the Seventh Circuit found called into question the independence of their judgments (although both scored her higher than he had), and FedEx changed the hiring panel composition process after it discovered this. Finding enough evidence from which a rational juror could conclude that FedEx failed to promote her because of her sex, her national origin, or both, the court vacated and remanded summary judgment.

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