SURPRISE! ILL-ADVISED COMMENTS CAN COME BACK TO HAUNT YOU

In prior Employment Law Alerts, we have discussed the new landscape created by the #MeToo movement, and the ways in which silly, immature comments – even jokes – can be used by a potential plaintiff to create the impression of a workplace filled with unlawful harassment.

A recent case decided by the U.S. Court of Appeals for the District of Columbia (the federal appeals court for Washington, D.C.) highlights the degree to which stupid, offhand comments can be used to show that a subsequent employment decision was the product of discriminatory bias.

In Iyoha v. Architect of the Capitol (July 2, 2019), the plaintiff, who was born in Nigeria, worked in the IT division of a governmental entity.

Shortly after becoming the Chief Information Officer (CIO) for the employer, the plaintiff’s supervisor allegedly commented in a staff meeting that he was glad that the plaintiff had decided to primarily communicate with him using e-mail, as he could not understand the plaintiff’s foreign accent when he spoke. The same supervisor allegedly commented several times about communications caused by employees who did not speak English as their first language; when a concern was raised about these comments, he is said to have responded, “So sue me. We can’t have people like that as our first-line communicators.” (It should be noted that the supervisor now denies making these comments.)

In 2012, the plaintiff had been reassigned to a new position, allegedly as part of a larger realignment within his division. A complaint filed by the plaintiff, resulted in a finding in his favor that the reorganization “was [not] an established plan at all, other than to move those with foreign accents to less customer-facing positions.”

Two years later (2014), after the plaintiff was used to test a new voice recognition software, his supervisor commented of the software, “it even recognizes [the plaintiff’s] accent.”

Later in 2014, the plaintiff applied for a promotion, and he was selected for an interview for the position (along with nine other individuals). One of the five individuals on the interview panel was his supervisor. Ultimately, the plaintiff was one of the lowest-ranked interviews, and he was not selected for the position; the individual chosen, the highest scoring candidate in the interview process, was from Taiwan and speaks English with an accent.

In the wake of that decision, the plaintiff filed a claim for national origin discrimination and retaliation. The district court initially granted summary judgment, dismissing the plaintiff’s claims. He therefore appealed to the U.S. Court of Appeals for the D.C. Circuit, which reversed that decision, finding that the plaintiff’s national origin discrimination claim could proceed to a jury trial.*

While the company argued that the plaintiff was not the most qualified candidate for the promotion, the court found that the decision was potentially polluted by discriminatory bias, as evidenced by the comments made by the supervisor, who sat on the interview panel. As the court concluded, “His presence on the panel is strong evidence that the selection process was not ‘fairly administered.’”

What a minute. The supervisor was not the only member of the interview panel; there were several other interviewers, each of whom concluded that the plaintiff was not the best-qualified individual for the position. How can it be said that a promotion process was tainted when the supervisor was only one of the panelists? The answer lies in the fact that the supervisor was “the most senior [member] of the panel,” which the court concluded “may have given him more sway in their group discussions.” As the court concluded, “a jury could find that the senior member of the panel not only had a history of making jokes about [the plaintiff’s] foreign accent but had actually discriminated against him in the past by removing him from the same branch in which he was seeking a new position and was in a position to potentially influence the scores given by the other members of the panel.

But the supervisor’s alleged comments were made several months (and in some cases, years) prior to the interview, correct? Nevertheless, the court found that, “while a remark removed in time from the challenged employment action ‘carries less weight than one made at the time of the [employment action],’” the comments could not be dismissed altogether, as they were “nonetheless probative evidence of a supervisor’s discriminatory attitude.”

Hold on a minute. In the end, the panel selected another individual with a heavy accent (Taiwanese). Is this not evidence that national origin played no role in the decision? Not so fast, the court concluded. The decision to promote another foreign-born candidate does not rebut the evidence of discrimination against the plaintiff, as “there is no testimony comparing [their] accents.”

Under these circumstances, the court allowed the plaintiff’s national origin discrimination claims to proceed to trial, where they will be determined by a jury.

In the end, the Iyoha case highlights the degree to which seemingly offhand remarks can be utilized against an employer in a subsequent employment discrimination case. Even if the supervisor’s comments could be characterized as sophomoric teasing, the simple fact remains that, when the plaintiff was not subsequently chosen for a promotion, he could point back to those comments as potential evidence of bias – even where the promotion decision occurred years later, where the supervisor was only one of five panelists examining the plaintiff’s application, and where another foreign-born individual was ultimately selected for the promotion.

The Iyoha case serves as an abject lesson to supervisors as to the risks associated with making stupid comments in the workplace. These comments can come back to haunt the employer in subsequent litigation – in which case the supervisor responsible for the comments may also find himself/herself without a job.

* The plaintiff also filed other claims against his employer, which are not addressed in this Alert.

If you have questions about this Employment Law Alert or wish to discuss the impact of this decision upon your business, please do not hesitate to contact Maury Nicely at Evans Harrison Hackett PLLC, 423/648-7851 or mnicely@ehhlaw.com.