Last week the 7th Circuit Court of Appeals found that remarks by a manager that an employee would improve her chances for promotion by being stoic like an Indian and less emotional could be evidence of gender and national origin discrimination. In Hussain v. Federal Express Corp., vacated summary judgment for FedEx where the Plaintiff, Shabi Hussain, alleged sex and national origin discrimination against FedEx in FedEx’s failure to promote her. The court found that a jury could have ruled that FedEx’s failure to promote Hussain was motivated by discriminatory intent. Hussain had offered evidence of her hiring manager telling her, after asking how she could get promoted, she needed to be more Indian. The hiring manager had never promoted a woman during his six years as managing director of the Chicago Metro District and had also told her that she was too emotional and overly aggressive, which both support an implication of sex discrimination.
Here’s how it went down. Hussain worked at her job as an operations manager for 15 years when she sought a promotion to a senior manager vacancy. Her hiring manager appointed a man as acting senior manager and solicited job applications. He also selected an interview panel for the position, with the majority of the panelists who reported to the hiring manager. They interviewed all nine applicants. The panel ranked plaintiff fourth among the candidates. The hiring manager selected the acting senior manager, who scored second in consensus scores by the panel and received significantly lower performance scores than Hussain. The hiring manager said he considered other factors in making the decision, including interpersonal skills, his own observations, and suitability with other senior managers.
The hiring manager offered feedback to the unsuccessful candidates. He told Hussain that she needed to be more like a Native American Indian, stoic and expressionless, instead of her overly emotional and aggressive self. These comments were not addressed by the lower court in ruling on the employer’s summary judgment. Rather, it found that plaintiff offered no evidence to support a finding that bias motivated the hiring manager. The district court determined that since Hussein received lower interview scores than three of the other applicants, she was not qualified.
The Court of Appeals found that the comments by the hiring manager were subject to two reasonable interpretations. A jury could find that in order to be promoted, the operations manager needed to exemplify stereotypical traits associated with national origin, different from her own, or that the hiring manager wanted Hussain to exemplify traits of Indian decent. Both interpretations evidence impermissible bias sufficient to vacate summary judgment.
The Court of Appeals found the hiring manager’s comments that Hussain was overly aggressive and too emotional were sufficient to avoid summary judgment on the claim of gender discrimination, especially because the HR manager, who was present at Hussain’s performance meetings, found her behavior appropriate and her recent performance reviews showed her leadership and managing ability as outstanding. This along with the facts that the hiring manager had never promoted a woman to senior manager and had also been written up twice before for taking managing responsibilities away from a woman, and given to a man to enhance his chances of promotion, was ample evidence to require a trial.
Finally, FedEx’s proffered legitimate for not promoting Hussain was not convincing to the court. The employer argued that the Plaintiff scored lower on her consensus scores and those were determined by an entire panel. But, the hiring manager didn’t rely only on the panel’s consensus scores, he relied on subjective factors as well. This along with the fact that two of the panel members directly reported to the hiring manger called into question the independence of the panel.
The lessons to be learned by employers from this case are two-fold. The first is that while interview panels can be helpful, the hiring or promotional criteria for a position should be made clear from the start. This would help to avoid an attack on the selection process. Secondly, employers and managers should be trained and re-trained on not only discrimination laws, but proper interviewing techniques. In hindsight, FedEx likely regrets giving a manager hiring authority who had a history of questionably discriminatory behavior.
