EverythingPeople This Week!

Published on Tuesday, May 14, 2019

“I Get by With a Little Help From My Friends…”

Author: Michael Burns

Did you know friendship as a hiring factor can beat off a discrimination allegation? A recent Michigan Court of Appeals ruling affirms other court decisions holding the same.court house

An African American nurse refused to work overtime in contravention of the employer’s unwritten mandation rule and was fired. A little while later the same employer rehired a white nurse that had previously been fired for the same thing, failing to work overtime as requested.

The terminated African American nurse filed a lawsuit alleging disparate treatment racial discrimination and proved it. The factors met to establish discrimination are:

  • Plaintiff is a member of a protected class
  • Plaintiff suffered an adverse employment action
  • Plaintiff was qualified for the position
  • The job was given to another person under circumstances giving rise to an inference of unlawful discrimination

These are the basic elements that a Plaintiff must show to establish a prima facie case of unlawful discrimination.

At this point in the legal proceedings the burden of proof shifts to the Defendant and the Defendant may rebut. Defendant employer in this case has to show that the reason for the adverse action was legitimately non-discriminatory. The Defendant in this case showed a legitimate non-discriminatory reason for re-hiring the white nurse because her friend vouched for the rehired nurse and encouraged the supervisor rehire the nurse at her friend’s “insistence” which the supervisor in turn did. This was sufficient in the eyes of the Court to “satisfy the minimal burden of production when it articulates that an employee was treated differently because of a friendship or close relationship.”

So, all it takes is the employer to show a friend insisted on the hiring of a friend to overcome discrimination? Not quite. Applying a shifting burden of proof process allows the Plaintiff to refute the alleged minimal production of rebuttal by showing this proffered reason was only a pretext for discrimination. Plaintiff, in this case at least, could not provide material proof to refute that friendship was not the real reason the white nurse was rehired instead of the Plaintiff.

The Court stated the “Plaintiff cannot simply show that the employer’s decision was wrong or mistaken, since the factual dispute at issue was whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent.” The reasons proffered by the Plaintiff did not rebut the circumstances.

This case does not establish any new law but reminds human resource professionals about the importance of reviewing and documenting employment actions. It is also a reminder to have policies in place. In this case, the employer seems to have been given a pass because the Court allowed it to argue it had a policy of requiring overtime called a mandation policy even though it had not been formalized.

A mandation policy is:

All employees must understand that shift vacancies may develop with little to no notice. ABC Company and our Facilities reserve the right to mandate employees to stay over, when necessary, to provide care for the residents we serve. ABC Company and Facility Management staff will work closely with you to provide as much advance notice as possible. An employee’s mandation refusal may lead to disciplinary action up to and including termination of employment.

It is also a bit surprising and hard to understand that courts have relied upon friendships, normally a reason to suspect conflict of interest, as a justifiable reason to re-employ a person previously fired for a policy breach that is still enforced at the organization.

“Gonna try with a little help from my friends.”

Additional ASE Resources
Handbook Services – If you need help developing or formalizing a mandation policy, contact Mike Burns.

Sources: State of Michigan Court of Appeals. Quartesia Rachelle Fields v. Metro Man II dba Four Seasons Nursing Center of Westland and Charles A. Dunn No. 341626 4/30/2019, The Beatles – With a Little Help From My Friends Lyrics


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