April 20, 2021

Playing Favorites at Work Doesn’t Work

When you train your staff and managers about preventing harassment, discrimination, and maintaining an inclusive workplace with a sense of belonging, do you talk about avoiding favoritism?

In a recent case, the U.S. 10th Circuit Court of Appeals reminded us that favoritism can give rise to claims of discrimination just as adverse treatment can.

When a black, male employee was fired for flirtatious conduct, he showed that a white male employee engaged in similar conduct, shared the same supervisor or decision-maker, failed to follow the same standard or policy, and was not fired. That, said the court, gave rise to an inference of a discriminatory motive for the firing.

Tip: When you conduct a workplace investigation, remember to ask an employee why the employee did or failed to do whatever is at issue. In this case, the employer did get the employee’s side of the story before they fired him.  They failed, however, to ask him why he said what he said. The court reminded us, “[A] factfinder can reasonably infer pretext from an employer’s failure to inquire into the reasons for an employee’s behavior.” Read more about the importance of the power of why in various chapters of my book!