The Sophisticated Employer Blog

Did you know that the composition of your workforce, or just a segment thereof, may hurt your chances of a court dismissing a discrimination claim? It’s worth considering in light of a ruling by the U.S. Court of Appeals for the Sixth Circuit in Jackson v. VHS Detroit Receiving Hospital, Inc.

In 1998, the plaintiff began working as a mental health technician at Detroit Receiving Hospital’s Crisis Center. Throughout her employment the plaintiff received high ratings on her performance reviews. On Sept. 6, 2013, she assisted a Registered Nurse (RN) colleague in discharging a patient who turned out to be the wrong one.

Both the RN and plaintiff failed to check the patient’s identification wrist band before the discharge. Fortunately, this patient, who had only arrived the night before complaining of depression and suicidal thoughts, returned on his own volition to the hospital's crisis center seven hours later. Both the RN and  plaintiff were discharged for their error. The plaintiff filed suit, alleging discrimination based on her sex. 

One method of proving discrimination claims under both state and federal civil rights laws is for the plaintiff to compare him or herself to a “similarly situated” employee who is not in the same protected status and who was treated more favorably in similar circumstances. In this case, the plaintiff compared herself to two male mental health technicians who she argued committed similar offenses and were not terminated. The U.S. District Court for the Eastern District of Michigan dismissed her case, finding that the violations committed by the two males were not sufficiently similar.

The federal appellate court disagreed, finding there were sufficient similarities for the comparison. In fact, while the circumstances may have been somewhat different, each of the two male “comparables” had discharged the wrong patient and neither had been terminated for their offense.

While most of the appellate court's opinion was devoted to comparing the plaintiff’s offense to her male comparables, the court also reviewed the composition of the workforce. The employer argued that because the decision makers were female and the vast majority of the workforce is female, there can be no inference that the plaintiff was discharged because of her sex.

The appellate court disagreed and noted that the plaintiff was the only female of the crisis center's 14 mental health technicians, which actually supported her argument that the center preferred males in that particular position. In addition, the appellate court discussed the U.S. Supreme Court’s previous ruling that it is “unwise to presume as a matter of law that human beings of one definable group will not discriminate against other members of their group.” Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998).

The appellate court found “this maxim especially true here, where the primary inference [plaintiff] attempts to draw from the record is that Crisis Center management preferred males for the position of [mental health technician], perhaps ‘because they thought females could not physically handle unruly patients.’” 

The clear message from this case is that it is important for human resources professionals to not only ensure diversity across the workforce, but in specific job classifications as well. Statistics can be used to defeat a motion to dismiss.