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Employers in Florida are free to use all lawful criteria in deciding which employees to promote within the business.  It is well known that Florida and federal law prohibit employment discrimination based on various characteristics, such as race, age, national origin, sex, or religious affiliation.  When considering employment discrimination lawsuits, Florida and federal courts have scrutinized  evidence employees have proffered in support of their claims of discrimination.  When the evidence does not logically prove discrimination, courts have dismissed the claims.  Peter Mavrick is an experienced employment lawyer who defends businesses and their owners against claims of employment discrimination and retaliation, including accusations of discrimination filed with the United States Equal Employment Opportunity Commission (EEOC) and the Florida Commission on Human Relations (FCHR).

In Wesley v. Austal USA, LLC, 18-13775 (11th Cir. June 28, 2019), the Eleventh Circuit Court of Appeals recently affirmed summary judgment in favor of an employer in a lawsuit claiming that the employee did not get a job promotion because of race discrimination.  The employee contended that circumstantial evidence showed there was a discriminatory motivation behind the employer’s decision not to promote her.

An employee using circumstantial evidence to show that she was discriminated against must comply with the judicial doctrine called the “McDonnel Douglas burden-shifting framework.”   McCann v. Tillman, 526 F.3d 1370, 1373 (11th Cir. 2008).  The employee is required to demonstrate that he or she (1) is a member of a protected class; (2) was subjected to an adverse employment action (such as a decision not to promote); (3) qualified to do the job, and (4) was treated less favorably than “similarly situated employees.”  If the employee establishes a prima facie case, the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for its action.  After the employer proffers the non-discriminatory reason, then the employee must show why this reason is not true or is otherwise a “pretext,” i.e., a reason given that is not the “real” reason.

In Wesley, the employer explained that it did not promote the plaintiff because she did not have enough experience for the position, she passively performed her duties, and she did not “take ownership” over the systems under her care.  The employee countered that she did in fact have enough experience for the job promotion.  The employee then argued that this was proof the employer’s contention that she “did not have the experience” was a mere pretext for race discrimination. The federal appellate court acknowledged that while it appeared that the employer’s claim that the employee lacked experience might have been false, by itself this was not enough to prove the employer was motivated by unlawful race discrimination under the McDonnel Douglas analysis. In other words, even if the employer was not honest about why it made its decision, that by itself does not prove that the employer actually discriminated against the employee.  The Eleventh Circuit relied on its earlier precedent in Flowers v. Troup County, Ga., Sch. Dist., 803 F.3d 1327 (11th Cir. 2015), which held that even if the employer was not honest about the real reason for the adverse employment action, e.g., a failure to promote an employee, this by itself is not enough to allow a jury to decide whether there was unlawful employment discrimination.

Wesley explained that the employee failed to meet her legal burden to prove discrimination.  The employee asserted that the employer had discriminatory motivation because it always paired her with another black, female employee.  The employee and two of her co-workers swore that this was because the other employees did not want to work with black women.  While the Eleventh Circuit explained that a practice of segregating employees for the comfort of coworkers would be a “reprehensible” practice, this evidence is insufficient to infer that the reason for her employer’s decision to not promote her was based upon race discrimination.  The appellate court reasoned that for the employee to satisfy her burden of proof that the employer’s proffered reasons for not promoting her were false/pretextual and that the real, secret motivation was unlawful race discrimination, the employee would have to submit evidence that the employer’s decision not to give her the job promotion was motivated her race.

Florida employers and human resources professionals should try to document their legal motivations for important employment decisions, such as job promotions.  Articulating the qualifications needed for the job and documenting why an applicant or candidate is not suitable or the most suitable for the job, can greatly strengthen the employer’s defense against spurious claims of employment discrimination.

Peter Mavrick is an employment attorney who has substantial experience in defending businesses and their owners against claims of employment discrimination and retaliation in Miami-Dade, Broward, and Palm Beach Counties, Florida.  This article does not serve as a substitute for legal advice tailored to a particular situation.

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